Affirmed and Opinion filed November 5, 2015.




                                     In The

                     Fourteenth Court of Appeals

                              NO. 14-15-00474-CR

                         EX PARTE JAMES AGBEZE


                     On Appeal from the 180th District Court
                              Harris County, Texas
                        Trial Court Cause No. 1288928-A

                                OPINION


      Appellant James Agbeze appeals the habeas court’s order denying his post-
conviction application for writ of habeas corpus on his conviction for theft of
property by a government contractor with an aggregated value of $1,500 or more,
but less than $20,000. See Tex. Code Crim. Proc. art. 11.072. In his appeal,
appellant argues the habeas court abused its discretion in denying his requested
relief. We affirm.
                                           BACKGROUND

      Appellant claims that in 2007 an investigator in his case, Ihenacho Nnadi,
solicited a bribe in exchange for preparing a report that would allow appellant to
avoid prosecution. Appellant refused to pay, and Nnadi said appellant would face
prison time. Appellant was convicted on February 11, 2013, and assessed
punishment of seven years community supervision and a $10,000 fine. Thereafter,
Nnadi was arrested and pled guilty to federal charges of bribery.

      Appellant then filed an application for writ of habeas corpus seeking to
vacate his conviction on grounds that he is actually innocent, based on newly
discovered evidence and the State’s Brady violation for failing to disclose Nnadi’s
corruption.1 The habeas court denied the application and filed written findings of
fact and conclusions of law.

                                   STANDARD OF REVIEW

      We review the denial of habeas corpus relief under an abuse-of-discretion
standard and consider the facts in the light most favorable to the habeas court’s
ruling. Ex parte Wheeler, 203 S.W.3d 317, 324 (Tex. Crim. App. 2006). An
applicant seeking post-conviction habeas corpus relief bears the burden of
establishing by a preponderance of the evidence that the facts entitle him to relief.
Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002). We afford
almost complete deference to the habeas court’s determination of historical facts
supported by the record, especially when those factual findings rely upon an
evaluation of credibility and demeanor. Ex parte Tarlton, 105 S.W.3d 295, 297
(Tex.App.—Houston [14th Dist.] 2003, no pet.). We apply the same deference to
review the habeas court’s application of law to fact questions, if the resolution of

      1
          Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963).

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those determinations rests upon an evaluation of credibility and demeanor; if the
outcome of those ultimate questions turns upon an application of legal standards,
we review the habeas court’s determination de novo. Id.

                                 APPLICABLE LAW

      A claim of actual innocence is cognizable in a post-conviction habeas corpus
proceeding. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996); Tex.
Code Crim. Proc. Ann. art 11.072 (procedures in community supervision case).
Two types of actual innocence claims may be raised. Herrera v. Collins, 506 U.S.
390, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993); Schlup v. Delo, 513 U.S. 298, 115
S.Ct. 851, 130 L.Ed.2d 808 (1995). A Herrera-type claim is a substantive claim in
which the applicant asserts a “bare claim of innocence based solely on newly
discovered evidence.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App.
2002). In contrast, a Schlup-type claim is a procedural claim in which the
applicant’s claim of innocence does not alone provide a basis for relief, but is tied
to a showing of constitutional error at trial. Id; Ex parte Brown, 205 S.W.3d 538,
544–45 (Tex. Crim. App. 2006); see Schlup, 513 U.S. at 315, 115 S.Ct. 860–61
(concluding Schlup’s constitutional claims were otherwise procedurally barred). A
Schlup-type claim may not be brought in an initial habeas application, as the
constitutional claims are not procedurally barred. Ex Parte Villegas, 415 S.W.3d
885, 887 (Tex. Crim. App. 2013).

      When an applicant asserts actual innocence based on a Herrera-type claim,
the habeas court must first consider whether the applicant presented newly
discovered evidence that affirmatively establishes his innocence. Franklin, 72
S.W.3d at 678; see also Ex parte Calderon, 309 S.W.3d 64, 65 (Tex. Crim. App.
2010); Brown, 205 S.W.3d at 546. If the applicant presents such evidence, the
habeas court then determines whether the applicant proved by clear and convincing

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evidence that no reasonable juror would have convicted him in light of the newly
discovered evidence. Brown, 205 S.W.3d at 544; Franklin, 72 S.W.3d at 678. The
habeas court must examine the “newly discovered evidence” and determine
whether the “new” evidence, when balanced against the “old” inculpatory
evidence, unquestionably establishes the applicant’s innocence. Ex parte
Thompson, 153 S.W.3d 416, 417 (Tex. Crim. App. 2005). The habeas court does
not review the fact finder’s verdict but instead decides whether the newly
discovered evidence would have convinced the fact finder of the applicant’s
innocence. Ex parte Elizondo, 947 S.W.2d at 207, 209; see Ex parte Thompson,
153 S.W.3d at 427–28 (Cochran, J., concurring).

      Under Brady, the State is required to provide a defendant with exculpatory
material or other evidence favorable to his defense. Thomas v. State, 841 S.W.3d
399, 407 (Tex. Crim. App. 1992). However, Brady does not apply to evidence
known or available to the defense. See Hayes v. State, 85 S.W.3d 809, 815 (Tex.
Crim. App. 2002); Badillo v. State, 255 S.W.3d 125, 132 (Tex.App.—San Antonio
2008, no pet.).

                                      ANALYSIS

      In his brief, appellant asserts the habeas court improperly denied his
application alleging that he was actually innocent of the crime and that the State
committed a Brady violation when it failed to disclose Nnadi’s corruption to trial
counsel. It is unclear whether appellant is thereby alleging a Herrera-type claim, a
Schlup-type claim or both. Among other findings, the habeas court found 1) Nnadi
sought a bribe in 2007 in exchange for appellant’s avoiding prosecution, 2) Nnadi
did not testify or prepare any analysis at appellant’s trial, and 3) appellant failed to
present any false evidence that was presented at his trial. The court concluded, in
part, 1) appellant did not present any new evidence that would shed new light on

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his conviction, and 2) appellant provided no new evidence of relevant facts that the
appellant was not aware of at the time of his trial.

       To the extent appellant argues a “bare claim of innocence based solely on
newly discovered evidence,” we conclude Nnadi’s corruption does not
“unquestionably establish” appellant’s innocence. Franklin, 72 S.W.3d at 676.
Further, it is not “newly discovered evidence,” as appellant was well aware of it at
the time of trial. Brown, 205 S.W.3d at 545 (concluding evidence was not newly
discovered where the same evidence had been attached to a motion for new trial
two years earlier). Accordingly, it does not support appellant’s claim of actual
innocence on that basis. See Elizondo 947 S.W.2d at 210 (requiring a showing by
clear and convincing evidence that no reasonable juror would have convicted in
light of the newly discovered evidence).

       To the extent appellant’s argument rests on the alleged Brady violations, we
note that this habeas application is appellant’s first. Because appellant's Brady
claims are not procedurally barred as subsequent, a Schlup-type innocence claim
dependent on them is improper. Ex Parte Villegas, 415 S.W.3d at 887. The fact
that Nnadi attempted to elicit a bribe from appellant was a fact known and
available to the defense.2 Thus, because Brady does not apply to evidence known
or available to the defense, the State did not violate its duty to disclose. See Hayes,
85 S.W.3d at 815, and Jackson v. State, 552 S.W.3d 798, 804 (Tex. Crim. App.
1976). Appellant’s Schlup-type claim for relief depends critically on the validity of
his Brady claims. See Schlup v. Delo, 513 U.S. at 315, 115 S. Ct. at 861. For these
reasons, we conclude the record does not reflect the habeas court abused its

       2
          We further note that appellant alleges only that the FBI, not the State, was aware of
Nnadi’s dishonesty. See Rubalcado v. State, 424 S.W.3d 560, 574 n.72 (Tex. Crim. App. 2014)
(recognizing knowledge would not necessarily be imputed if the agent at issue worked for a
different sovereign than the one who conducts the prosecution).

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discretion in denying appellant’s application for writ of habeas corpus. Appellant’s
issue is overruled and the order of the habeas court is affirmed.




                                       /s/       Martha Hill Jamison
                                                 Justice



Panel consists of Justices Jamison, McCally, and Wise.
Publish — Tex. R. App. P. 47.2(b).




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