                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-17-00198-CR


EX PARTE MITCHELL WAYNE
WATTS




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          FROM THE 372ND DISTRICT COURT OF TARRANT COUNTY
                TRIAL COURT NO. C-372-010536-1262636-AP

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                        MEMORANDUM OPINION1

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      Appellant Mitchell Wayne Watts appeals from the trial court’s denial of his

article 11.072 application for writ of habeas corpus. Tex. Code Crim. Proc. Ann.

art. 11.072 (West 2015). We conclude the trial court did not abuse its discretion

by denying Watts’s application and, therefore, we affirm.



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       See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      In 2011, Erica2 made an outcry that Watts had sexually molested her in

July 2006, when she would have been nine or ten years old. Erica stated that

Watts had masturbated in front of her; had gotten into the shower with her; had

penetrated her sexual organ with his fingers; and had held her down. Watts was

subsequently charged with one count of aggravated sexual assault of a child,

one count of indecency with a child by contact, and one count of indecency with

a child by exposure. See Tex. Penal Code Ann. § 21.11(a)(1), (a)(2)(A) (West

2011), § 22.021(a)(1)(B)(i), (a)(2)(B) (West Supp. 2016). On August 13, 2012,

pursuant to a plea-bargain agreement, Watts pleaded guilty to the indecency-by-

exposure count, the State waived the other two counts, and the trial court placed

Watts on deferred-adjudication community supervision for ten years.

      On August 4, 2015, Watts filed this habeas application alleging, as his sole

ground for relief, that new evidence established his actual innocence. The new

evidence, Watts alleged, was Erica’s recantation of the allegations she made

against him in 2011.     Watts attached to his application an affidavit Erica

executed, in which she averred, “I fully retract my statement against [Watts] in

2011 accusing him of molesting me. It is not true and did not happen ever.

[Watts], in no way, shape[,] or form, ever molested me.” The trial court held a

      2
        We use aliases to refer to individuals who were minors at the time the
charged offenses were committed. See Tex. R. App. P. 9.10(a) (providing
privacy protection for sensitive data in criminal cases, including the name of a
minor).


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hearing, and after concluding that Erica’s recantation was not credible, it denied

Watts’s application.

                   II. WATTS’S ACTUAL-INNOCENCE CLAIM

      In his sole issue, Watts argues that because Erica’s recantation is newly

discovered evidence that affirmatively establishes his innocence and no

reasonable juror would have convicted him in light of Erica’s recantation, the trial

court abused its discretion by denying his habeas application.

                             A. STANDARD OF REVIEW

      In reviewing a trial court’s ruling on a habeas application, we view the

evidence in the light most favorable to the trial court’s ruling and will uphold the

trial court’s ruling absent an abuse of discretion. See Kniatt v. State, 206 S.W.3d

657, 664 (Tex. Crim. App. 2006). In a habeas corpus proceeding under article

11.072, as this one is, the trial court is the sole finder of fact, and the applicable

standard of review is the highly deferential standard set forth in Guzman v. State,

955 S.W.2d 85, 89 (Tex. Crim. App. 1997). State v. Guerrero, 400 S.W.3d 576,

583 (Tex. Crim. App. 2013).        Under that standard, we afford almost total

deference to the trial court’s factual findings when supported by the record,

especially when those findings are based upon credibility and demeanor. Id. We

also afford great deference to the trial court’s application of the law to the facts,

to the extent that the resolution of the ultimate question turns on an evaluation of

credibility and demeanor. Ex parte Mello, 355 S.W.3d 827, 832 (Tex. App.—Fort

Worth 2011, pet. ref’d) (op. on reh’g).


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       B. THE LAW REGARDING HERRERA-TYPE ACTUAL INNOCENCE CLAIMS

      Watts has raised a Herrera-type actual innocence claim—that is, he has

asserted a bare claim of innocence based solely upon newly discovered

evidence. See Herrera v. Collins, 506 U.S. 390, 396 (1993); Ex parte Brown,

205 S.W.3d 538, 544 (Tex. Crim. App. 2006). Such a claim is cognizable in a

post-conviction habeas corpus application. Brown, 205 S.W.3d at 544. But as

the court of criminal appeals has said, “[e]stablishing a bare claim of actual

innocence is a Herculean task.” Id. at 545. Indeed, to prevail on a Herrera claim

the applicant must show by clear and convincing evidence that no reasonable

juror would have found him guilty in light of the new evidence. Ex parte Navarijo,

433 S.W.3d 558, 566–67 (Tex. Crim. App. 2014); Ex parte Vasquez, 499 S.W.3d

602, 607 (Tex. App.—Houston [1st Dist.] 2016, pet. ref’d).

      In reviewing a Herrera claim, the trial court must first consider whether the

applicant presented newly discovered evidence that affirmatively establishes his

innocence. Ex parte Mello, 355 S.W.3d at 831. If the applicant presents such

evidence, the trial court then determines whether the applicant proved by clear

and convincing evidence that no reasonable juror would have convicted him in

light of the newly discovered evidence. Id. The trial 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. Id. The trial court does not review the fact finder’s verdict

but instead decides whether the newly discovered evidence would have


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convinced the fact finder of the applicant’s innocence.        Id.   If the applicant

entered a guilty plea, the guilty plea—along with any evidence entered, or

stipulation to the evidence, supporting the plea—must be considered in weighing

the old evidence against the new evidence. Id.

                                    C. ANALYSIS

      The evidence that Watts contends constitutes newly discovered evidence

affirmatively establishing his innocence is Erica’s recantation, in both her affidavit

and hearing testimony, of the allegations she had made against him in 2011. As

noted above, the trial court held a hearing on Watts’s application. To help frame

our discussion of the testimony at that hearing, we begin by noting two things.

First, the record reflects that at the time of Erica’s outcry in July 2011, as well as

at the time of the habeas hearing on March 4, 2016, Watts lived with Erica’s

mother. And second, one of the conditions of Watts’s community supervision

was that he not contact Erica in any manner. With those facts in mind, we turn to

the hearing testimony.

                             1. The Habeas Hearing

      Echoing her recantation affidavit, at the hearing Erica testified that the

allegations she had made against Watts in 2011 were not true. When asked why

she had made the allegations if they were not true, Erica replied, “That I don’t

necessarily have an explanation for. At the time I did not want to live with my

mother, and I knew [Watts] had [previously] been accused of [sexual misconduct

with a child].” She stated that before her 2011 outcry against Watts, a custody


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proceeding had been underway between her mother and biological father. With

respect to that custody proceeding, Erica indicated that she wanted to live with

her father and not her mother. Thus, she testified, her allegations against Watts

were an attempt to get out of her mother’s house and to go live with her father.

In short, Erica testified she made the 2011 allegations against Watts, who was

living with her mother, not because the allegations were true, but because she

wanted to live with her father rather than her mother.

      After Watts’s plea of guilty in the resulting criminal case, Erica testified that

she did live with her father. In July 2014, she began dating Allen, but her father

did not get along with Allen very well. Erica stated that at some point in July

2014, she and her father got into an argument, and she moved out of her father’s

residence and went to live with her grandmother. Then, in August 2014, Erica’s

mother drove Erica to the district attorney’s office so she could find out what she

could do to have Watts’s no-contact condition removed. Erica and her mother

met with then assistant district attorney Sheila Wynn and Lester Couch, an

investigator with the district attorney’s office. At one point during the meeting,

Erica’s mother was asked to step outside of the room, and after she did so,

Wynn, with Couch observing, interviewed Erica.

      Wynn asked Erica three separate times whether she wanted to recant her

2011 allegations against Watts or whether she just wanted to have his conditions

of community supervision changed. All three times, Erica replied that she did not

want to recant; she just wanted to make changes to Watts’s conditions. Erica


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said she felt that she was the one being punished by the conditions of Watts’s

community supervision; that the conditions were against her; and that because of

the conditions, she could not visit her mother as much as she wanted. Erica told

Wynn that she wanted to make her family whole again and wanted everyone to

be together.    When the meeting concluded, Wynn told Erica that Watts’s

conditions could not be removed.       And it was only after this August 2014

meeting, in which she learned that Watts’s conditions of community supervision

would not be removed as she had wanted, that Erica, in September 2014, first

recanted her 2011 allegations against Watts in a letter.

      In July 2015, Erica, who at that time was pregnant with her first child, had

been working at a day care since late February or early March of that year. By

July, however, the pregnancy had become hard on her, so she stopped working.

Erica testified that her mother had helped her financially during her first

pregnancy, and she also testified that her mother had helped her in 2014 by

giving her money and by “feeding [her] and helping [her] get clothes and stuff.”

Erica’s first child was born in September 2015. She executed the recantation

affidavit Watts attached to his habeas application in August 2015.

      By the time of the habeas hearing on March 4, 2016, Erica had become

engaged to Allen and was pregnant with her second child. She acknowledged

she was experiencing financial difficulties.        Indeed, she was receiving

governmental assistance through the Supplemental Nutrition Assistance

Program (SNAP) and the Women, Infants and Children Food and Nutrition


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Service (WIC) and had recently faced eviction for failure to pay rent.         She

testified that if the conditions on Watts’s community supervision did not exist,

then her mother would be able to help her by babysitting her infant child and

soon-arriving baby. She also stated that without those conditions, she would be

able to spend more time with her family.         Indeed, she stated that if Watts’s

conditions did not exist, then she and her children would be able to live with her

mother.

      Heidi McCusker, Watts’s Tarrant County Community Supervision and

Corrections Department supervisor, also testified at the hearing. She stated that

at her initial meeting with Watts in August 2012, he asked her a question that

caused her concern. That question was, “What will happen if [Erica] recants her

story?” The reason that caused her concern, McCusker explained, was that just

before he asked that question, Watts had told her that he had been charged and

convicted “of another case” and had gone to prison, that he had appealed, that

he was retried for the offense, and that the charges ultimately were dropped after

the victim recanted. This concerned McCusker because she thought Watts may

try to enlist Erica’s mother to get Erica to recant her allegations.

      The State subpoenaed Erica’s brother to the hearing and called him as a

witness. Erica’s brother clearly expressed that he did not want to testify and that

both his mother and Erica had come to his place of work to “in a sense” pressure

him about his testimony. Erica’s brother testified that in 2006, while he and his

sister were living with their mother and Watts, he walked into his sister’s room


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unexpectedly and observed his sister and Watts “playing.” He further testified

that his sister was dressed only in a sports bra and underwear and that Watts

admonished him for not knocking before he entered the room, which scared him.

      Following the hearing, the trial court made extensive findings of fact and

conclusions of law in support of its order denying Watts’s habeas application,

including the following findings concerning the credibility of Erica’s recantation:

      70. Hon. Charles Reynolds presided over [Erica’s] testimony and
      found her recantation not credible in light of all the evidence.

      71. [Erica’s] testimony that [Watts] did not sexually assault her is not
      credible.

      72. [Erica’s] recantation is not credible affirmative evidence of
      innocence.

      73. [Watts] has not shown, by clear and convincing evidence, that
      no reasonable juror would have convicted him in light of [Erica’s]
      testimony or affidavit.

            2. The Trial Court’s Findings Are Supported By the Record

      In his brief, Watts acknowledges the fact that in the context of an article

11.072 habeas proceeding, almost total deference is owed to the findings of the

trial court that are based upon credibility and demeanor, as the above findings

are. See Guerrero, 400 S.W.3d at 583. Nevertheless, he asks us to reweigh the

evidence and substitute the trial court’s findings that Erica’s recantation was not

credible and did not constitute affirmative evidence of his innocence with contrary

findings.    He relies on two decisions from the court of criminal appeals to

demonstrate that contrary to the trial court’s finding, Erica’s recantation is



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affirmative evidence that established his innocence.        See Ex parte Tuley,

109 S.W.3d 388, 395–97 (Tex. Crim. App. 2002); Ex parte Elizondo, 947 S.W.2d

202, 209–10 (Tex. Crim. App. 1996). Both cases are, however, inapposite.

      Elizondo was a habeas proceeding in which the applicant had been

convicted of aggravated sexual assault of a child, see Elizondo, 947 S.W.2d at

204, 209–10, and Tuley was a habeas proceeding in which the applicant had

pleaded guilty to aggravated sexual assault of a child, see Tuley, 109 S.W.3d at

390, 395–97. The applicants in both cases raised Herrera-type claims of actual

innocence based upon the recantations by the complainants of the sexual

assault allegations they had made against the applicants.             See Tuley,

109 S.W.3d at 395–97; Elizondo, 947 S.W.2d at 209–10. In both cases, the

court of criminal appeals concluded the complainants’ recantations were more

credible than the testimony at trial and granted relief to both applicants. Tuley,

109 S.W.3d at 397; Elizondo, 947 S.W.2d at 210.

      Watts asserts his case is analogous to Elizondo and Tuley because like

the complainants’ recantations in those cases, Erica’s recantation explained why

she had made false accusations against him. See Tuley, 109 S.W.3d at 396;

Elizondo, 947 S.W.2d at 210. And, Watts argues, like the applicant in Tuley, he

“comprehensively articulated his reasons for pleading guilty to an offense which

he didn’t commit.” See Tuley, 109 S.W.3d at 395. However, unlike here, the

respective trial courts in Tuley and Elizondo found the recantations were credible,

and the court of criminal appeals determined the record supported a finding that


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the recantations were more credible than the trial testimony and constituted

affirmative evidence of the applicants’ innocence. See Tuley, 109 S.W.3d at 397;

Elizondo, 947 S.W.2d at 210. By contrast, the trial court here found that Erica’s

recantation was not credible and did not constitute affirmative evidence of

Watts’s innocence.       Our discussion above regarding the circumstances

surrounding Erica’s recantation demonstrates those findings are supported by

the record. And having found that Watts’s newly discovered evidence did not

affirmatively establish his innocence, the trial court did not abuse its discretion by

denying his writ application.    See Mello, 355 S.W.3d at 839 (citing Ex parte

Franklin, 72 S.W.3d 671, 678 (Tex. Crim. App. 2002); Ex parte Thompson,

153 S.W.3d 416, 427 (Tex. Crim. App. 2005) (Cochran, J., concurring))

(reasoning that the trial court’s analysis was complete when it concluded the

applicant failed to provide affirmative evidence of his innocence). We overrule

Watts’s sole issue.

                                III. CONCLUSION

      Having overruled Watts’s sole issue, we affirm the trial court’s order

denying his article 11.072 application for writ of habeas corpus. See Tex. R.

App. P. 43.2(a).




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                                         /s/ Lee Gabriel

                                         LEE GABRIEL
                                         JUSTICE

PANEL: GABRIEL, KERR, and PITTMAN, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: November 2, 2017




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