            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                        NO. AP-76,917

                  Ex parte KENNETH WAYNE BOYD, JR., Applicant

            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           CAUSE NO. 97-CR-14,643A IN THE 273 RD DISTRICT COURT
                            SHELBY COUNTY

                                           OPINION
             Per Curiam.


       Applicant was convicted of capital murder and sentenced to life imprisonment. The Twelfth

Court of Appeals affirmed his conviction.1 Applicant subsequently filed an application for writ of

habeas corpus pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure.

In it, he contends that he was denied his rights under the Confrontation Clause, that the State

withheld favorable evidence from the defense, that the State knowingly presented false testimony,



       1
         Boyd v. State, No. 12-99-0305-CR (Tex. App.–Tyler, August 22, 2001, pet. ref’d) (not
designated for publication).
                                                                                           BOYD — 2

and that newly discovered evidence demonstrates that he is actually innocent of this offense.

        The trial court determined that Applicant’s claims are meritorious, and recommends that his

conviction be reversed. The trial court notes that Applicant raised his Confrontation Clause claim

on direct appeal and that the court of appeals held that there was error but found that the error was

harmless in light of other evidence, including the testimony of two jailhouse witnesses. However,

the newly discovered evidence presented by Applicant in this application includes affidavits from

both jailhouse witnesses recanting their testimony. The trial court finds that, in light of the

recantations of the two witnesses upon whose testimony the court of appeals relied to determine the

Confrontation Clause violation was harmless error, the court of appeals’s harm analysis should be

revisited. Noting that the other evidence presented by the State at Applicant’s trial was “weak,” the

trial court finds that the Confrontation Clause violation was harmful error.

        Applicant alleges that the State failed to disclose material, exculpatory evidence to the

defense. Applicant also raised some of these allegations on direct appeal, but the court of appeals

agreed with the State’s contention that Applicant was attempting to raise matters outside the

appellate record. In this application, Applicant presents materials that were found in the State’s file

by the newly elected District Attorney after the trial prosecutor left office. The newly elected District

Attorney, believing that the materials might constitute Brady material that was not disclosed to the

defense, provided those materials to Applicant’s attorney after his trial. Applicant now alleges that

this newly available evidence was material and favorable to the defense. The trial court agrees,

concluding that in light of the record as a whole, there is a reasonable probability that, had the

evidence been disclosed, the outcome of Applicant’s trial would have been different.
                                                                                             BOYD — 3

        Applicant also alleges that several of the State’s witnesses at trial testified falsely, as revealed

by their recantations and the newly available evidence contained in police and polygraph

examination reports, some of which were not provided to the defense prior to trial. The trial court

finds that several of the State’s witnesses testified falsely and that the trial prosecutor was aware of

the falsity of their testimony. The trial court concludes that there is, at the very least, a reasonable

likelihood that the false testimony presented by the State’s witnesses at Applicant’s trial affected the

outcome of the trial.

        Finally, in light of the newly discovered and newly available evidence presented by Applicant

and its probable impact on the State’s case as a whole, the trial court concludes that Applicant has

proven by clear and convincing evidence that no reasonable juror would have voted to convict him.

        We disagree with the trial court’s conclusion that Applicant is entitled to relief on his actual-

innocence claim. We have held that “when an applicant asserts a Herrera-type [actual innocence]

claim based on newly discovered evidence, the evidence presented must constitute affirmative

evidence of the applicant's innocence.”2 None of the newly discovered evidence presented in the

habeas proceedings constitutes affirmative evidence that Applicant did not in fact commit the crime.

Rather, all of this evidence simply impeaches inculpatory evidence that was presented at trial.

        But we agree with the trial court that Applicant is entitled to relief on his favorable-evidence

and false-testimony claims. Consequently, we grant relief. The judgment of conviction in the instant

cause is set aside, and Applicant is remanded to the custody of the Sheriff of Shelby County. The

trial court shall issue any necessary bench warrant within 10 days after the mandate of this Court

       2
           Ex parte Franklin, 72 S.W.3d 671, 678 (Tex. Crim. App. 2002).
                                                                                         BOYD — 4

issues.

          Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.

Delivered: November 14, 2012
Do not publish
