             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                      NO. WR-85,420-01

                            EX PARTE SONIA CACY, Applicant

               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. P-2037-B-83-CR IN THE 83RD DISTRICT COURT
                             FROM PECOS COUNTY

       Y EARY, J., filed a concurring opinion in which K ELLER, P.J., joined.

                                CONCURRING OPINION

       A post-conviction habeas corpus applicant can obtain relief in Texas if he can produce

new evidence to satisfy this Court, by clear and convincing evidence, that no reasonable jury,

having heard both the evidence presented at trial and the new, exculpatory evidence, would

have convicted him. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). We

have described this as a “Herculean” burden. Ex parte Brown, 205 S.W.3d 538, 545 (Tex.

Crim. App. 2006). I am in favor of granting post-conviction relief to any applicant who can

meet it. I think that Applicant has. Beyond that, I think she has clearly established that she

is entitled to relief on several other bases, including a claim that the State inadvertently used

false evidence against her, a claim that her conviction is based upon unreliable science under
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Article 11.073,1 and a claim that her trial attorney provided ineffective assistance of counsel.

I therefore concur in the Court’s judgment.

        The astute reader may have noticed that I have not yet used the short-hand rendition

often attributed to a claim brought under Elizondo: so-called “actual innocence.” I have

avoided that terminology advisedly because I believe that, in many cases, it overstates the

criteria under which we are amenable to granting post-conviction habeas corpus relief as a

matter of due process. Not every successful Elizondo applicant is necessarily literally

“actually innocent.” The Elizondo standard, on its face, does not really focus on innocence

per se. It is, instead, an exceedingly high burden by which an applicant must show that, if

newly available evidence were added to the evidentiary mix, no reasonable jury would have

found the State’s case to have been compelling enough to defeat the systemic presumption

of innocence. Simply put, the State would not have been able to prove him guilty beyond a

reasonable doubt, and a reasonable jury would be obliged to declare him not guilty. This is

not the same as establishing that the applicant is manifestly innocent.2

        1
            TEX . CODE CRIM . PROC. art. 11.073.
        2
          It is true that the Court has continued since Elizondo to insist that its standard was designed
to determine not only whether the habeas applicant’s new evidence has “overcome the presumption
that [his] conviction is valid[,]” but also whether it has “unquestionably establish[ed] applicant’s
innocence.” Brown, 205 S.W.3d at 545. Elizondo itself seemed to regard the standard it adopted as
a legitimate process for deciding, not just whether a habeas applicant would still have been
convicted, but also whether he has shown himself to be “unquestionably” innocent. See 947 S.W.2d
at 209 (“The question is, . . . what level of confidence is required to implement the ‘unquestionably
establish’ language.”). The fact remains, however, that in selecting the appropriate level of
confidence, the Court in Elizondo fashioned a standard that asked, not how confident the habeas
court had to be that the applicant was, in fact, innocent. (We could have fashioned a test in Elizondo,
for example, that asked whether the applicant has shown by clear and convincing evidence that he
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       None of which is to say that an applicant might not be able to proffer new evidence

that does conclusively establish his innocence. Such a showing would clearly satisfy the

Elizondo standard—indeed, it would exceed that standard—and I would be willing to call

that applicant “actually innocent.” But there are some lesser showings that would also be

compelling enough to satisfy the Elizondo standard. This case is one of those. I would still

grant relief to those applicants, and to Applicant here, but I would not go so far as to call

them “actually innocent.”

       I realize that, in Ex parte Franklin, 72 S.W.3d 671, 678 (Tex. Crim. App. 2002), the

Court arguably seemed to stiffen the Elizondo standard—even more—by engrafting a sort

of preliminary burden of production that the habeas applicant must meet. There we held that,

before we will even proceed to inquire whether the Elizondo standard has been satisfied, we

must first determine that the applicant’s new evidence “constitute[s] affirmative evidence of

[his] innocence.” Id. In the context of the facts of Franklin, however, it does not appear to

me that the Court really meant to require an applicant to adduce evidence that would

conclusively prove his innocence. That would make the threshold part of the

Franklin/Elizondo test more rigorous than the ultimate part that actually measures the

likelihood that a reasonable jury would find him not guilty. It would be absurd to fashion a



is “innocent.”) Instead, the Court asked itself how confident the habeas court must be that the jury
would still have convicted him. Not every habeas applicant who presents new evidence that, taken
together with the old, by clear and convincing evidence, would cause a reasonable jury to acquit him
has necessarily demonstrated that he is “unquestionably” innocent. Even new evidence that entirely
obliterates the State’s evidence of guilt does not necessarily definitively establish innocence.
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test in which the initial burden of production is harder to satisfy than the ultimate burden of

persuasion. I do not think that is what the Court intended in Franklin. Instead, I think the

Court merely meant to require that the applicant’s new evidence, proffered in the hope that

it might satisfy the Elizondo standard, should at least constitute some direct evidence that he

did not commit the crime; it cannot merely “collaterally” impeach the strength of the State’s

evidence that he did (as was the case in Franklin itself).3 The touchstone for habeas corpus

relief as a matter of due process remains the Elizondo standard.

       My bottom line is that, though I remain content to grant habeas relief to any applicant

who satisfies the Elizondo standard, I would avoid the label of actual innocence—at least in

the absence of evidence that conclusively proves, not just that a reasonable jury, by clear and

convincing evidence, would not have convicted him, but that the applicant manifestly did not

commit the offense. I cannot say that Applicant has met that threshold of proof, and so I

would not call her “actually innocent.” 4


       3
           Franklin, 72 S.W.3d at 678. Franklin involved a prosecution for sexual assault of a child.
Id. at 672. At trial, the complainant testified that the applicant had raped her and that she had never
before that “had sexual relations with anyone.” Id. at 673. In post-conviction habeas corpus
proceedings, the applicant presented new evidence to show that, in fact, the complainant had been
regularly sexually assaulted by her step-father prior to the time she claimed that the applicant raped
her. Id. While this new evidence served in context to impeach to a certain extent the complainant’s
trial testimony, it did not establish that the applicant had not raped her. Indeed, the complainant
continued to maintain throughout the post-conviction habeas corpus proceedings that he had. Id. at
678. We observed that the applicant’s new evidence “certainly calls into question [the
complainant’s] veracity in general, but only collaterally affects her accusation against applicant.” Id.
       4
          The Texas Legislature has provided for compensation for a person who “has been granted
relief in accordance with a writ of habeas corpus that is based on a court finding or determination
that the person is actually innocent of the crime for which the person was sentenced[.]” TEX . CIV .
PRAC. & REM . CODE § 103.001(a)(2)(B). The Texas Supreme Court has construed this provision to
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        Nevertheless, whether because I believe she has satisfied Elizondo, or because I

believe she has proven by a preponderance of the evidence one or more of her other claims

for relief—false evidence, Article 11.073, and ineffective assistance of counsel—I agree with

the Court that she is entitled to relief in the form of a new trial. I therefore concur in the

Court’s judgment.5




FILED:          November 2, 2016
PUBLISH




authorize compensation for any habeas applicant who has been able to establish “actual innocence”
as that term has come to be understood following our opinion in Elizondo. In re Allen, 366 S.W.3d
696, 706 (Tex. 2012). In arguing that we should not necessarily label every type of Elizondo claim
an “actual innocence” claim, it is not my purpose to call into question the Supreme Court’s
construction of the compensation statute. Some habeas applicants may be able to satisfy the Elizondo
standard without necessarily establishing what I would choose to call their “actual innocence.”
Whether those applicants should still be able to obtain relief under the Texas Civil Practice and
Remedies Code is not a question that concerns me here.
        5
          In Ex parte Reyes, 474 S.W.3d 677, 681 (Tex. Crim. App. 2015), we observed that “[a]
declaration of actual innocence, because of its impact on a defendant’s reputation, affords greater
relief than merely granting a new trial[.]” It is perhaps for this reason that the Court grants Applicant
relief today on the basis of her Elizondo claim rather than any of her other meritorious claims. Again,
I do not disagree that an “actual innocence” claim should take priority over others in this way—so
long as it is understood that “actual innocence” is merely a “term of art,” signifying nothing more
than that an applicant has satisfied the Elizondo standard. See In re Allen, 366 S.W.3d at 706
(“‘Actual innocence’ is a legal term or art, which has acquired a technical meaning in the habeas
corpus context.”). It does not necessarily mean that an applicant has literally established that he is
actually innocent. The Elizondo standard, onerous as it is, and as it should be, does not require as
much before authorizing relief on due process grounds.
