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EX PARTE §IN IHE 230th DISTRICT COURT
§ of v
BOB NICHOLS NORFLEET §HARRIS COUNTY/ TEXAS

REPLY TO STATE'S ANSWER

 

Applicantt asserts that Tex.Crim.Proc.Code Ann.art.llO7 §4(a) is the wrong
standard in which to evaluate claims of "Actual Innocence". Applicant clearly
stated in his writ application and his "Statement of the Facts" that he was
bringing the forgoing writ before the court on the grounds of actual inno-
cence. Applicant clearly stated that he was presenting a Schlup-Type clainLof

actual innocence to have his otherwise procerdurally barred claims heard

on the merits. v RECE|V
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Standard of Evaluation For "Actual Innocence" Claims~”.‘

 

In Schlup v- Delo, 513 U.S. 298, the court ruled that Carrier{ ix
2627 set the. standard and must govern the miscarriage of €%;ihce §§§hg¥§nk
when a petition raises a claim of Actual Innocence to avoid a procedural
bar to the consideration of the merits constitutional claims.
To establish "Actual Innocence"/ Applicant must demonstrate that in light
of all the evidence, it is more likely than not that no reasonable juror
would have convicted him.(quoting, Schlup v. Delo, 115 S.Ct 851, 867-68)
Judge Friendly's description of the inquiry is appropriates The habeas
court must make it's determination concerning the petitioner's innocence
"in light of all the evidence, including that alleged to have been_illegally
admitted(but with due regard to any unreliability of it) and evidence tenably
claimed to have been wrongly excluded ot to have become available only after trial.f
However, Applicant"s evidence is a video tape recor§l€i¢\§@§til§§§® %§§S_
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dent. Applicant relies on this video tape recording of the-bus accident to
prove his actual innocence claims.

This video tape was also viewed in Applicantfs trial. But because of the
erroneous jury chrge instructions given to the jury, which failed to limit
the definition of the culpable mind state to the result of the aggravated
assault offence, the jury following the trial court's instructions, viewed
the evidence on the video tape in terms of assessing Applicant's culpable
mental state as it applied to his "conduct" in consciously disregarding the
safety signals displayed on the back of a stopped school bus and passing
it, rather than assessing Applicant's conduct to det€tmine if he was actually
aware of the resulting risk of bodily injury. Aggravated assault is a result-
oriented offence. Tex. Penal Code.Ann.Art.22.02. See, Banks, 819 S.W. 2d.676
The prosecution in Applicant's trial was required to prove that Applicant
actually saw the students in his planned course of travel before he overtook
the bus. But because of the erroneous jury charge instructions, compounded
by the prosecution's argument which focused on the Applicant's awareness
of the bus‘s brake lights, the entire evidentary picture was manipulated
and distorted. Therfor, the jury was not allowed to see this evidence of
Applicant's linnocence. Therefor, it is only logical to conclude that the
evidence Applicant wishes to present to prove his innocence has not been
previously presented to the trial court.

Of course, the court may find Applicant's new evidence to be unpersuasive.
But, assuming for the purpose of applying its understanding of the Carrier
Standard-it surely can not be said.that a juror, conscientiously following
the judge's instructions requiring proof beyond a reasonable doubt, would
vote to convict after a "proper viewing" of the video recording of the bus
'accident. Under a proper application of Carrier, Applicant's showing of inno-

cence is not insufficient solely because the trial record contained suffi-

cient evidence to support the jury's verdict. In Applicant's case a evident-
iary hearing must be held to assess the probative force of the newly present-
ed evidence in connection with the evidence of guilt adduced at trial. In
Applicant's case, because the video tape of the bus accident was not viewed
in its proper perspective, there was no evidence of Applicant's guilt adduced
at trial that pertained to the applicable law of Aggravated Assault. Because
the District Court evaluated Applicant's claims under an improper standard,

Further preceedings are necessary.

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