                                                                  ACCEPTED
                                                                    07-15-380
                                                SEVENTH COURT OF APPEALS
                                                          AMARILLO, TEXAS
                                                       11/25/2015 9:40:38 AM
                                                            Vivian Long, Clerk




          NO. 07-15-00380-CR
                In The                      FILED IN
                                     7th COURT OF APPEALS

Seventh Court of Appeals
                                         AMARILLO, TEXAS
                                     11/25/2015 9:40:38 AM
            Amarillo, Texas                VIVIAN LONG
                                              CLERK



           In Re Rene Pesina


     On Appeal from Cause 2420-A
72nd District Court, Crosby County, Texas
 Honorable Ruben Reyes, Judge Presiding


        APPELLANT’S BRIEF



                    BENJAMIN P. GARCIA
                    State Bar No. 24073120
                    WARE SHAY & GARCIA, PLLC
                    1915 Broadway
                    Lubbock, Texas 79401
                    (806) 763-5044 – Phone
                    (806) 765-7536 – Fax
                    benpgarcia@aol.com
                    Counsel for Appellant,
                    Rene Pesina




      Oral Argument Requested
          IDENTITIES OF PARTIES AND COUNSEL

Appellant
    Rene Pesina

Counsel for Appellant
    Benjamin P. Garcia
    Ware Shay & Garcia, PLLC
    1915 Broadway
    Lubbock, TX 79401

Appellee
    The State of Texas

Counsel for Appellee
    Michael Sales
    Crosby County Attorney
    201 W. Aspen St., # 106
    Crosbyton, TX 79322




                               i
                                TABLE OF CONTENTS

                                                                                              Page

IDENTITY OF PARTIES AND COUNSEL ............................................ i

TABLE OF CONTENTS .........................................................................ii

INDEX OF AUTHORITIES ................................................................... iv

STATEMENT OF THE CASE ................................................................ v

STATEMENT REGARDING ORAL ARGUMENT .............................. vii

ISSUES PRESENTED .........................................................................viii

STATEMENT OF FACTS ...................................................................... ix

SUMMARY OF ARGUMENT ............................................................... xii

STANDARD OF REVIEW ...................................................................xiii

ARGUMENT ........................................................................................... 1

       I.    This Court should reverse and instruct the district court to

       hold an evidentiary hearing on Appellant’s Herrera-claim of

       actual innocence because Appellant asserted a claim that, if true,

       would establish affirmative evidence of his innocence ................. 1

       II.    This Court should reverse and instruct the district court to

       hold an evidentiary hearing on Appellant’s other claims of

       entitlement to habeas relief because Appellant should be


                                                  ii
        permitted to develop all asserted grounds for habeas relief in an

        evidentiary hearing where he is entitled to develop his Herrera-

        claim of actual innocence in an evidentiary hearing .................... 6

        III.      This Court should reverse and instruct the district

        court to hold an evidentiary hearing on Appellant’s Herrera-

        claim of actual innocence to allow Appellant to subpoena

        the “reluctant” recanting victim to explore the recantation .......... 8

PRAYER ................................................................................................. 12

CERTIFICATE OF COMPLIANCE ...................................................... 13

CERTIFICATE OF SERVICE ............................................................... 14




                                                   iii
                             INDEX OF AUTHORITIES

                                                                                           Page

Constitutional Provisions

U.S. Const., Fourteenth Amendment ............................................... 9, 12

Texas Const., Art. 1, Sect. 19 .................................................................. 3

Statutes

Tex. Code Crim. P., Art. 11.072 ....................................... xiii, xv, 1, 8, 12

Cases

Ex Parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006) ............... 2, 5-6

Ex Parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002) ................. 5-6

Ex Parte Franklin, 310 S.W.3d 918
(Tex. App.—Beaumont 2010) .................................................. xiii, xv, 1-5

Matthews v. Eldridge, 424 U.S. 319 (1976) ...................................... 9, 11




                                                iv
                    STATEMENT OF THE CASE

     On February 5, 1996, the Honorable Blair Cherry, District Judge

of the 72nd District Court, Crosby County, in cause number 2420,

placed Appellant on deferred adjudication probation for indecency

with a child. (C.R. at 24.) On July 20, 2015, Appellant filed a verified

petition for writ of habeas corpus, under article 11.072 of the TEXAS

CODE OF CRIMINAL PROCEDURE, advancing the following four grounds

for habeas relief: (1) actual innocence based on newly discovered

evidence, to wit: the recatnation of M.M., formerly known as M.P.; (2)

ineffective assistance of counsel; (3) involuntariness of plea because of

ineffective assistance of counsel; and (4) violation of Brady v.

Maryland. (C.R. at 4-11.)

     On August 24, 2015, without holding an evidentiary hearing, the

Honorable Ruben Reyes, District Judge of the 72nd District Court,

Crosby County, entered an order denying Appellant’s Application for

Writ of Habeas Corpus. (C.R. at 59-65.)

     On September 21, 2015, Appellant filed a Motion for

Reconsideration and Request for Evidentiary Hearing in which he

argued that he was entitled to an evidentiary hearing because he


                                    v
asserted a claim of actual innocence based on newly discovered

evidence and under principles of Due Process. (C.R. at 66-74.) In said

Motion, Counsel for Appellant made the trial court aware of the

recantation of M.M.. (C.R. at 69-70.) Additionally, in said Motion,

Counsel for Appellant made the trial court aware of (a) the fact that

Appellant was unable to secure an affdiavit from M.M. regarding this

recantation, (b) the fact that M.M. hired an attorney to contact

Counsel for Appellant regarding her unwillingness to sign an affidavit,

and (c) the fact that Counsel for Appellant planned on calling M.M. as

a witness during an evidentiary hearing on Appellant’s habeas

petition. (C.R. at 70.) On September 28, 2015, the trial court denied

Appellant’s Motion for Reconsideration and Request for Evidentiary

Hearing. (C.R. at 77.)

     Appellant now appeals the aforementioned rulings of the trial

court, having filed his notice of appeal on September 29, 2015 (C.R. at

75-76), and having obtained an extension of time to file appeal from

this Honorable Court on October 16, 2015.




                                   vi
         STATEMENT REGARDING ORAL ARGUMENT

     Appellant respectfully requests oral argument and submits that

it should be permitted because it would allow a more thorough

discussion of how Ex Parte Franklin, 310 S.W.3d 918 (Tex. App—

Beaumont 2010) and Ex Parte Brown, 205 S.W.3d 538 (Tex. Crim.

App. 2006) should apply to the unusual circumstances in this case, the

rule proposed in issue 3, and the competing interests at stake in

connection with said proposed rule.




                                  vii
                        ISSUES PRESENTED

Issue 1 - When a habeas petitioner asserts a Herrera-claim of actual
innocence based on newly discovered evidence, the trial court should
conduct an evidentiary hearing. In this case, the trial court refused to
hold an evidentiary hearing. As his first issue, Appellant asks this
Court: did the trial court err by refusing to hold an evidentiary
hearing on Appellant’s Herrera-claim of actual innocence?

Issue 2 - When a habeas petitioner is entitled to an evidentiary
hearing on one of the grounds asserted for habeas relief, the petitioner
should be permitted to advance all the remaining grounds in the
evidentiary hearing. In this case, the trial court refused to hold an
evidentiary hearing on all of Appellant’s grounds for habeas relief. As
his second issue, Appellant asks this Court: did the trial court err by
refusing to hold an evidentiary hearing on Appellant’s non-Herrera
claims for habeas relief.

Issue 3 - Procedural due process requires an opportunity to be heard
at a meaningful time in a meaningful manner. In this case, the victim
in the underlying case has made written statements consistent with
Appellant’s right to habeas relief, but refused to provide an affidavit to
habeas counsel. Therefore, Counsel for Appellant was reqruied to
subpoena her to an evidentiary hearing to explore the recantation. As
his third issue, Appellant asks this Court: did the trial court err in
refusing to hold an evidentiary hearing at which the “reluctant”
recanting victim could be compelled to testify?




                                   viii
                      STATEMENT OF FACTS

     On February 5, 1996, the Honorable J. Blair Cherry, District

Judge of the 72nd District Court, Crosby County, in cause number

2420, placed Appellant on deferred adjudication probation for

indecency with a child. (C.R. at 24.) The victim in said case was

named M.P., now M.M. (C.R. at 5, 15, 23).

     M.M. has recently recanted her accusations; she wrote in an

electronic message “cause what I can recall is that [Appellant] didn’t

do anything to me and I wrote that in the statement too many years

ago . . . .” (C.R. at 5-7, 69-70, 73-74.) Appellant hired Counsel for

Appellant to pursue a writ of habeas corpus based on this recantation,

and other grounds advanced by Counsel for Appellant; however, M.M.

was extremely reluctant “to get involved.” (See C.R. at 70.) Counsel

for Appellant attempted to contact M.M. prior to filing the Petition for

Writ of Habeas Corpus, but she hired an attorney who sent a letter to

counsel for Appellant advising that M.M. would not sign an affidavit

and did not wish to speak with Counsel for Appellant. (C.R. at 70.)

     Regarding the second and third grounds for habeas relief,

Appellant was not informed of the consequences of his guilty plea—to


                                    ix
wit: that he would be required to register as a sex offender—and, in

fact, he was told the opposite: that he would not be required to register

as a sex offender, since he was only being placed on deferred

adjudication, not convicted. (C.R. at 7-10.) This was contrary to the

law in effect on the date of Appellant’s guilty plea. (C.R. at 9.) This

fact was the basis of Appellant’s second and third ground advanced for

habeas relief, ineffective assistance of counsel and involuntariness of

plea. Gene Walters, Counsel for Appellant in the underlying case,

indicated that he did not have any “independent recollection of

anything that happened in the case.” (C.R. at 43.) Gene Walters

indicated in his affidavit for the State that, despite the fact that he has

no independent recollection of Appellant’s case, based on Mr. Walter’s

regular practices, Appellant must be mistaken about his allegations.

(See C.R. at 43-44.)

     Regarding the final ground for habeas relief, M.M. recently

stated, in writing, that she indicated Appellant’s lack of culpability to

law enforcement in a written statement during the investigation in the

underlying case. (See C.R. at 69-70, 73-74.)




                                    x
     On August 24, 2015, without holding an evidentiary hearing, the

Honorable Ruben Reyes, District Judge of the 72nd District Court,

Crosby County, entered an order denying Appellant’s Application for

Writ of Habeas Corpus (C.R. at 59-65.) and on September 28, 2015, the

trial court denied Appellant’s Motion for Reconsideration and Request

for Evidentiary Hearing. (C.R. at 77.). Appellant now appeals these

rulings.




                                  xi
                    SUMMARY OF ARGUMENT

Issue 1 - Appellant respectfully submits that, consistent with the

holding in Ex Parte Franklin, 310 S.W.3d 918 (Tex. App.—Beaumont

2010), this Court should reverse and instruct the District Court to hold

an evidentiary hearing on Appellant’s Herrera-claim of actual

innocence because Appellant asserted a claim that, if true, would

establish affirmative evidence of his innocence.

Issue 2 - Appellant respectfully submits that this Court should

reverse and instruct the trial court to hold an evidentiary hearing on

Appellant’s “non-Herrera” claims of entitlement to habeas relief

because Appellant should be permitted to develop all asserted grounds

for habeas relief where he is entitled to develop his Herrera-claim of

actual innocence in an evidentiary hearing.

Issue 3 - Appellant respectfully submits that, under principles of Due

Process and to give effect to article 11.072 of the TEXAS CODE OF

CRIMINAL PROCEDURE, this Court should reverse and instruct the trial

court to hold an evidentiary hearing on Appellant’s Herrera-claim of

actual innocence to allow Appellant to subpoena the “reluctant”

recanting victim to explore her recantation.


                                   xii
                      STANDARD OF REVIEW

     While a trial court has discretion regarding whether to hold an

evidentiary hearing, see TEX. CODE CRIM. P. art. 11.072, § 6(b), the

standard of review, in this case, is de novo because (1) the issue of

whether Appellant was entitled to an evidentiary hearing was a mixed

question of law and fact and (2) the judge of the trial court in the un-

derlying case was the Honorable J. Blair Cherry (C.R. at 24-25) and

the judge in the writ proceeding was the Honorable Ruben Reyes (C.R.

at 1, 65, 77) and, therefore, the trial court was not in an appreciably

better position than this Court. Ex Parte Franklin, 310 S.W.3d 918,

921 (Tex. App.—Beaumont 2010) (applying de novo standard review in

such a situation).




                                   xiii
                             ARGUMENT

     I.    This Court should reverse and instruct the

     district court to hold an evidentiary hearing on

     Appellant’s Herrera-claim of actual innocence because

     Appellant asserted a claim that, if true, would

     establish affirmative evidence of his innocence.

     The Code of Criminal Procedure provides that a person may seek

a writ of habeas corpus for relief from an order placing the individual

on community supervision. TEX. CODE CRIM. P. art. 11.072, § 1. In

cases in which a writ of habeas corpus is sought under article 11.072,

the Court is required to enter a written order ruling on the application

and, in doing so, “the court may order affidavits, depositions,

interrogatories, or a hearing, and may rely on the court's personal

recollection.” TEX. CODE CRIM. P. art. 11.072, § 6(a)-(b). Therefore, the

trial court has the discretion to order any or all of the aforementioned

procedures. See id. However, in certain circumstances, the law

requires the trial court to order a hearing, rather than simply ruling

on the contents of the application, response, and their attachments.

Ex Parte Franklin, 310 S.W.3d 918, 921-23 (Tex. App.—Beaumont


                                    1
2010) (holding that habeas applicant was entitled to a hearing to

explore recantation since applicant asserted a claim of actual

innocence based on newly discovered evidence); see Ex Parte Brown,

205 S.W.3d 538, 546 (Tex. Crim. App. 2006) (recognizing that, before a

habeas applicant is entitled to a hearing, they “must make a claim

that, if true, establishes affirmative evidence of innocence”).

     In Ex Parte Franklin, Tracy Franklin filed applications for writs

of habeas corpus and included an affdiavt from the victim in the

underlying case in which she recanted her trial testimony. 310 S.W.3d

at 920, 922. The trial court denied the applications for writs of habeas

corpus without holding an evidentiary hearing. Id. at 920. On appeal,

Franklin argued that the trial court abused its discretion in failing to

conduct an evidentiary hearing. Id.at 919-20. The Beaumont Court of

Appeals, however, determined that the appropriate standard of review

was de novo because the issue of whether Franklin was entitled to a

hearing was a mixed question of law and fact and the trial judge was

not in an appreciably better position than the appellate court since the

trial judge in the writ proceeding was not the judge at Franklin’s trial.

Id. at 921. For this same reason, de novo is the appropriate standard


                                    2
of review in this case, as the case at bar involves a mixed question of

law and fact, as to Appellant’s entitlement to an evidentiary hearing,

and the judge in the underlying case (Hon. J. Blair Cherry) was not

the judge who presided in the habeas proceeding (Hon. Ruben Reyes).

(C.R. at 1, 24-25, 65, 77.)

      The Franklin Court characterized the claim advanced as a

Herrera-claim because Franklin advanced the claim that he was actu-

ally innocent based on newly discovered evidence. Franklin, 310

S.W.3d at 921 (quoting Ex Parte Brown, 205 S.W.3d 538, 544 (Tex.

Crim. App. 2006)). The Franklin Court framed the issue as follows:

“whether Franklin’s ‘newly discovered evidence,’ which in this case

consists of S.D.’s 2006 affidavit, ‘establishes affirmative evidence’ of

Franklin’s innocence.” Id. In Franklin, the applicant was able to, and

did, attach an affidavit from the victim in the underlying case indicat-

ing “she ‘made up the story’ she provided at trial, and then states that

Franklin ‘did not touch me or molest me in any inappropriate way.’”

Id. The Beaumont Court of Appeals concluded that this affidavit was

sufficient to entitle Franklin to a hearing because it, if true, consti-

tutes affirmative evidence of Franklin’s innocence. Id. at 923. The


                                     3
Franklin Court wrote, “[w]e conclude that because Franklin asserted a

claim that he was actually innocent, the trial court should have con-

ducted evidentiary hearings to allow Franklin the opportunity to call

S.D. as a witness and to allow S.D. to provide an explanation about

which of her accounts is accurate.” Id.

     In this case, unfortunately, for reasons discussed more fully in

Appellant’s third issue, this is not the typical recantation situation,

since M.M. indicated, in an electronic communication, that Appellant

did not commit the underlying offense, but was unwilling to provide an

affidavit for inclusion in Appellant’s Application for Writ of Habeas

Corpus. (C.R. at 69-70, 73-74.) And while Appellant was unable to

procure an affidavit from M.M., formerly M.P., Appellant did produce

to the trial court electronic messages from M.M. in which she indicates

that Appellant did not do anything to her. (C.R. at 73-74.) Appellant

respectfully submits that this constitutes a written recantation, de-

spite the fact that it does not meet the formalities of an affidavit. In

addition to this written recantation, the verified Application for Writ

of Habeas Corpus alleges that Appellant “believes he will be able to

present what qualifies as newly discovered evidence, the recantation of


                                    4
M.M. . . . .” (C.R. at 6, 13.) Here, as in Franklin, Appellant asserted a

claim that he was actually innocent based on newly discovered evi-

dence and produced newly discovered evidence that, if believed, estab-

lishes affirmative evidence of his innocence. For these reasons, the

trial court erred in refusing to hold an evidentiary hearing. Id. at 923.

      Appellant respectfully submits that the threshold issue, with

respect to a habeas applicant’s entitlement to an evidentiary hearing

on the issue of actual innocence based on newly discovered evidence, is

most analogous to a burden of production. See Ex Parte Brown, 205

S.W.3d 538, 546 (Tex. Crim. App. 2006) (citing Ex Parte Franklin, 72

S.W.3d 671 (Tex. Crim. App. 2002)1 (discussing the procedure for

entitlement to a hearing and the purpose of the evidentiary hearing).

This is so because the applicant must present evidence that

constitutes affirmative evidence of the applicant’s innocence and, once

they do so, the cause can proceed to a determination of whether the

applicant can meet its burden of persuasion. Ex Parte Franklin, 72

S.W.3d at 678 (Tex. Crim. App. 2002); see also Ex Parte Brown, 205

S.W.3d at 546 (providing that the habeas applicant must “make a

1Not to be confused with the similarly titled Ex Parte Franklin, from the Beau-
mont Court of Appeals, previously discussed.

                                        5
claim that, if true, establishes affirmative evidence of innocence”

before entitlement to a hearing).

     Appellant met this burden of production (see C.R. at 73-74.), as

required by Ex Parte Franklin, 72 S.W.3d at 678 (Tex. Crim. App.

2002), and made a claim that, if true, establishes affirmative evidence

of innocence (see C.R. at 6, 13.), as required by Ex Parte Brown, 205

S.W.3d at 546. Appellant should be allowed, at an evidentiary

hearing, to carry his burden of persuasion. This Court should reverse

and instruct the trial court to hold an evidentiary hearing on

Appellant’s Herrera-claim of actual innocence because appellant

asserted a claim that, if true, would establish affirmative evdience of

his innocence.

     II.   This Court should reverse and instruct the

     district court to hold an evidentiary hearing on

     Appellant’s other claims of entitlement to habeas

     relief because Appellant should be permitted to

     develop all asserted grounds for habeas relief in an

     evidentiary hearing where he is entitled to develop




                                    6
     his    Herrera-claim      of   actual    innocence      in     an

     evidentiary hearing.

     As a practical matter, an applicant for a writ of habeas corpus

who is entitled to an evidentiary hearing, as described in Appellant’s

first issue, should be permitted to advance all grounds raised for

habeas relief at the evidentiary hearing. In this case, Appellant

advanced the following four grounds for habeas relief: (1) actual

innocence based on newly discovered evidence; (2) ineffective

assistance of counsel; (3) involuntariness of plea because of ineffective

assistance of counsel; and (4) violation of Brady v. Maryland. (C.R. at

4-11.) Since Appellant is entitled to an evidentiary hearing on the

first ground, it only makes sense for Appellant to be permitted to

address the second, third, and fourth grounds at such a hearing.

Otherwise, the procedure would become unnecessarily complicated by

different requirements of proof for the various grounds, with a portion

of the grounds advanced being determined without an evidentiary

hearing and the remainder being determined at an evidentiary

hearing.




                                    7
     Furthermore, the language of the statute does not expressly

authorize the trial court to order a hearing on only a portion of the

application for writ of habeas corpus. See TEX. CODE CRIM. P. art.

11.072, § 6(b). Such a “bifurcation” is not expressly permitted by

statute and Appellant respectfully submits that practical

requirements neccessitate a rule that a habeas applicant is entitled to

develop all asserted grounds for habeas relief in an evidentiary

hearing where he is entitled to develop one or more of his grounds for

habeas relief an evidentiary hearing.

     For the aforementioned reasons, this Court should reverse and

instruct the trial court to hold an evidentiary hearing on Appellant’s

“non-Herrera” claims of entitlement to habeas relief because Appellant

should be permitted to develop all asserted grounds for habeas relief

where he is entitled to develop his Herrera-claim of actual innocence in

an evidentiary hearing.

     III. This Court should reverse and instruct the

     district court to hold an evidentiary hearing on

     Appellant’s Herrera-claim of actual innocence to allow




                                    8
     Appellant to subpoena the “reluctant” recanting

     victim to explore the recantation.

     The Due Process Clause of the Fourteenth Amendment of the

United States Constitution prohibits any state from depriving any

person of life, liberty, or property without due process of law.

Similarly, the Texas Constitution provides that “No citizen of this

State shall be deprived of life, liberty, property, privileges or

immunities, or in any manner disinfranchised, except by the due

course of the law of the land.” TEX. CONST. art. 1, § 19. Due process

fundamentally requires the opportunity to be heard “at a meaningful

time and in a meaningful manner.” Matthews v. Eldridge, 424 U.S.

319 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)).

     This case involves an unusual set of cirumstances, where the

victim in the underlying criminal cause, M.M., indicated, in an elec-

tronic communication, that Appellant did not commit the underlying

offense, but she was unwilling to voluntarily provide an affidavit for

inclusion in Appellant’s application for writ of habeas corpus. (C.R. at

69-70, 73-74.) And while Appellant was unable to procure an affidavit

from M.M., formerly M.P., Appellant did produce to the trial court


                                     9
electronic messages from M.M. in which she indicates that Appellant

did not do anything to her. (C.R. at 73-74.) In such a situation, Appel-

lant respectfully submits that Appellant should have been permitted

to subpoena M.M. to an evidentiary hearing to explore her recantation.

     Appellant does not argue that every habeas applicant in every

situation should be permitted to call a victim to the witness stand.

Such a rule would undoubtedly prove unworkable as convicted crimi-

nals would certainly attempt to re-litigate their cases. Rather, Appel-

lant respectfully submits that an appropriate rule would be one that

allows a habeas applicant, who advances a claim of actual innocence

based on newly discovered evidence, to subpoena a victim to the habe-

as evidentiary hearing where the victim has made an unequivocal

statement or statements regarding the applicant’s innocence and that

fact is demonstrable by substantial evidence. This rule would strike

an appropriate balance between judicial economy and giving appropri-

ate finality and respect to final judgments, on the one hand, and guar-

anteeing that an actually innocent habeas applicant has the procedur-

al due process necessary to exonerate him or herself, on the other

hand. See Matthews v. Eldridge, 424 U.S. 319, 335 (1976) (analyzing


                                   10
the level of procedures appropriate in particular circumstances by bal-

ancing various interests, including the private interest that will be af-

fected by the action, the risk of erroneous deprivation of such interests

through the procedures in place, and the government’s interest, in-

cluding financial and administrative burdens, that the additional re-

quirements would entail.) It would allow the habeas applicant the

opportunity to be heard at a meaningful time and in a meaningful

manner and to compel the recanting victim to testify regarding the

recantation, where the applicant can make the threshhold showing

that the victim has made an unequivocal statement or statements re-

garding the applicant’s innocence and that fact is demonstrable by

substantial evidence (e.g., witness statements, recordings, written or

electronic correspondence, etc.).

     Appellant further respectfully submits that, in situations such as

this, article 11.072 of the Texas Code of Criminal Procedure is ren-

dered ineffective if the habeas applicant is unable to compel the re-

canting, but reluctant, victim to testify at an evidentiary hearing. The

legislature created a procedural framework for habeas relief in com-

munity supervision cases, but such framework does not guarantee an


                                    11
actually innocent habeas petitioner the right to compulsory process to

establish his innocence based on newly discovered evidence, such as a

recantation. See TEX. CODE CRIM. P. art. 11.072. Is a habeas applicant

with an open and forthcoming recanting victim any more innocent

than a habeas applicant with a wary or inaccessible recanting victim?

Again, Appellant does not suggest that all habeas applicants should be

able to call victims to the witness stand in every situation, but only

that habeas applicants should be able to do so where the victim has

made an unequivocal statement or statements regarding the appli-

cant’s innocence and that fact is demonstrable by substantial evidence.

     Appellant respectfully submits that, under principles of Due

Process, under the Fourteenth Amendment of the United States

Constitution and article 1, section 19 of the TEXAS CONSTITUTION, and

to give effect to article 11.072 of the TEXAS CODE OF CRIMINAL

PROCEDURE, this Court should reverse and instruct the trial court to

hold an evidentiary hearing on Appellant’s Herrera-claim of actual

innocence to allow Appellant to subpoena the “reluctant” recanting

victim to explore her recantation.




                                     12
                                 PRAYER

      WHEREFORE, PREMISES CONSIDERED, Appellant prays

that this Court reverse and instruct the 72nd District Court, Crosby

County, to hold an evidentiary hearing on all grounds for habeas relief

pled in Appellant’s Application for Writ of Habeas Corpus or, in the al-

ternative, at least his Herrera-claim of actual innocence based on new-

ly discovered evidence. Appellant prays for such other and further re-

lief to which he is justly entitled.

                                       WARE SHAY & GARCIA, PLLC
                                       1915 Broadway
                                       Lubbock, Texas 79401
                                       (806) 763-5044 – Phone
                                       (806) 763-7536 – Fax

                                       /s/ Benjamin P. Garcia
                                       SBN 24073120
                                       COUNSEL FOR APPELLANT




                  CERTIFICATE OF COMPLIANCE

      Pursuant to Texas Rule of Appellate Procedure 9.4, I certify that

this brief contains less than 5,000 words.

                                       /s/ Benjamin P. Garcia




                                        13
                    CERTIFICATE OF SERVICE

     I certify that, on this, the 25th Day of November, 2015, a copy of

Appellant’s brief (redacted) was served on Appellee through the elec-

tronic filing manager if the email address of the party or attorney to be

served is on file with the electronic filing manager or, if the email ad-

dress of the party or attorney to be served is not on file with the elec-

tronic filing manager, it was served in person, by mail, by commercial

delivery service, by fax, or by email, in compliance with TEXAS RULE OF

APPELLATE PROCEDURE 9.5(b).

                                  /s/ Benjamin P. Garcia




                                   14
