            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-79,196-01



             EX PARTE ROBERT ALAN HARLESTON, JR., Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
           IN CAUSE NO. 1205091-A IN THE 176TH DISTRICT COURT
                          FROM HARRIS COUNTY

      H ERVEY, J., delivered the opinion of the Court in which K ELLER, P.J.,
M EYERS, K EASLER, C OCHRAN, and A LCALA, JJ., joined. P RICE, J., filed a concurring
opinion in which J OHNSON, J., joined. W OMACK, J., dissented.

                                       OPINION

       Applicant, Robert Harleston, Jr., is currently serving a twenty-five-year sentence

for the aggravated sexual assault of a child. In this application for a writ of habeas corpus,

Applicant claims that he is actually innocent based on the victim’s alleged recantations.

After conducting a live evidentiary hearing, the habeas court adopted findings of fact that

the victim’s recantations were credible and recommended that this Court grant relief.

       After independently reviewing the record, we reject the habeas court’s findings

that the victim’s recantations were credible because those findings are not supported by
                                                                                   Harleston–2

the record, and we hold that Applicant has failed to present clear and convincing evidence

that unquestionably establishes his innocence. Therefore, we will deny relief.

                       I. P ROCEDURAL HISTORY AND BACKGROUND

       In April 2007, the victim, K.D., spoke to a school counselor about a sexual matter

unrelated to the charges against Applicant. During that conversation, the counselor asked

K.D. about her sexual history. In response, K.D. revealed to the counselor that her first

sexual experience was with Applicant on Thanksgiving night of 2004 when he “put his

hands in between her legs and had put his penis inside of her.”1 K.D. was twelve years old

at the time. The counselor immediately notified law enforcement, and following an

investigation, Applicant was arrested and charged with aggravated sexual assault of a

child, to which he pled not guilty. At trial, testimony was adduced that Applicant sexually

assaulted K.D. again that same night in the living room and a third time on an unspecified

day in his vehicle. Applicant was convicted by a jury of his peers and sentenced to

twenty-five years’ imprisonment after pleading true to an enhancement allegation.

       On appeal, Applicant argued that he did not receive a proper jury trial because a



       1
         The familial situation of K.D. is complicated. Barbara is the mother of Gregory and
Sheila, and Sheila has two children: Kedrick and LaGarrin. K.D. was adopted by Barbara “about
three months after [she] was born” when Barbara was about 50 or 55 years old. By 2005, Barbara
suffered from a number of health ailments that began around 2003 or 2004. Barbara passed away
on January 9, 2006.
        Although Sheila is K.D.’s legal sister, K.D. testified that she viewed both Barbara and
Sheila as mother figures. And although Gregory is K.D.’s legal brother, she referred to him as
“uncle.” Gregory testified that Barbara allowed K.D. to call Sheila “mother” because Sheila had
two children about K.D.’s age, and Barbara and Sheila did not want K.D. to feel left out because
she was adopted.
                                                                                  Harleston–3

juror allegedly slept through a portion of testimony. The court of appeals held that

Applicant failed to preserve that complaint for appellate review. See Harleston v. State,

No. 01-09-00481-CR, 2010 WL 2873590 (Tex. App.—Houston [1st Dist.] 2010, pet.

ref’d) (mem. op.) (not designated for publication). Applicant then filed a petition for

discretionary review, which this Court refused on January 12, 2011.

       Just over a month after Applicant’s petition for discretionary review was refused,

K.D. hand wrote a nine-page affidavit allegedly recanting, for the first time, all of her

allegations against Applicant. Applicant then filed an application for a writ of habeas

corpus arguing that K.D.’s recantation proves by clear and convincing evidence that he is

actually innocent of the aggravated sexual assault of K.D. The habeas judge, who was the

same judge that presided over Applicant’s trial, held a live evidentiary hearing at which

two witnesses testified: K.D. and K.D.’s mother (Sheila). K.D.’s testimony was highly

inconsistent because she recanted her allegations and repudiated those recantations

multiple times.

       The habeas court made findings of facts that certain exhibits and portions of

K.D.’s testimony in which she recanted her trial testimony were credible and then

recommended that we grant Applicant relief because K.D.’s credible recantation proves

by clear and convincing evidence that Applicant is actually innocent of the crime for

which he was convicted.

                                      II. D ISCUSSION

       To prevail in a freestanding claim of actual innocence, an applicant must prove “by
                                                                                   Harleston–4

clear and convincing evidence that, despite the evidence of guilt that supports the

conviction, no reasonable juror could have found the applicant guilty in light of the new

evidence.” Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) (quoting Ex

parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002)); see Ex parte Elizondo, 947

S.W.2d 202, 207 (Tex. Crim. App. 1996). The burden placed upon the applicant to

prevail in a freestanding-actual-innocence claim is a “Herculean task” because, once an

applicant “has been afforded a fair trial and convicted of the offense for which he was

charged, the presumption of innocence disappears[,]” and “in the eyes of the law, [the

applicant] does not come before the Court as one who is ‘innocent,’ but . . . as one who

has been convicted by due process of law . . . .” See Herrera v. Collins, 506 U.S. 390,

399–00 (1993). “[W]hen [an applicant] has been tried before a jury of his peers, with the

full panoply of protections that our Constitution affords criminal defendants, it is

appropriate to apply an ‘extraordinarily high’ standard of review.” Elizondo, 947 S.W.2d

at 208 (quoting Herrera, 506 U.S. at 404 (O’Connor, J., concurring) (internal quotation

marks omitted) (citations omitted)). This is because an applicant alleging a Herrera claim

is directly attacking the propriety of his conviction, although the applicant does not

dispute that he received an error-free trial. Id. at 209 (“[A]n exceedingly high standard

applies to the assessment of claims of actual innocence that are not accompanied by a

claim of constitutional error at trial.”). As a result, an applicant alleging a Herrera claim

must make “an exceedingly persuasive case that he is actually innocent.” Id. at 206.

       When an applicant presents new exculpatory evidence under Article 11.07 of the
                                                                                   Harleston–5

Texas Code of Criminal Procedure alleging facts that, if true, prove his or her actual

innocence, the habeas court may conduct a live evidentiary hearing and consider

affidavits, depositions, interrogatories, and the judge’s own personal recollection if the

habeas judge was also the trial judge, as in this case. See T EX. C ODE. C RIM. P ROC. art.

11.07, § 3(d); see also Brown, 205 S.W.3d at 546. If a live hearing is held, the habeas

court should assess the credibility of any witnesses and other admitted evidence. But

regardless of whether a hearing is held, and before the habeas court can make a proper

recommendation to this Court, the court must assess the probable impact of the new

evidence, and then weigh the newly discovered evidence against the old inculpatory

evidence to determine whether the applicant has met the burden of proof necessary to

unquestionably establish his innocence. Ex parte Franklin, 72 S.W.3d 671, 677–78 (Tex.

Crim. App. 2002) (quoting Elizondo, 947 S.W.2d at 206). The habeas court then

memorializes its findings of fact and conclusions of law and recommends to this Court

whether relief should be granted. Brown, 205 S.W.3d at 546.

       When reviewing a habeas court’s findings of fact and conclusions of law, we defer

to those findings and conclusions if they are supported by the record. Id. We defer to

findings supported by the record because the habeas court is the “original factfinder” and

is in the best position to evaluate the credibility of testifying witnesses. Ex parte Reed,

271 S.W.3d 698, 727 (Tex. Crim. App. 2008). However, our deference is not a rubber

stamp, and we can invoke our authority as the ultimate fact finder to make contrary or

alternative findings and conclusions “[w]hen our independent review of the record reveals
                                                                                   Harleston–6

that the trial judge’s findings and conclusions are not supported by the record . . . .” Id.

This authority extends, when necessary, to making findings contrary of the habeas

court—despite the fact that a finding may be based on credibility. Id. at 727. “[F]actors

other than demeanor and inflection go into the decision whether to believe a witness.”

Anderson v. Bessemer City, 470 U.S. 564, 575 (1985). For example, “[d]ocuments or

objective evidence may contradict the witness’ story; or the story itself may be so

internally inconsistent or implausible on its face that a reasonable factfinder would not

credit it.” Id. Moreover, we have held that “when numerous, but not all, findings and

conclusions are not supported by the record, the determination of the level of deference to

be accorded to the findings and conclusions as a whole is to be made on a case-by-case

basis.” Reed, 271 S.W.3d at 727.

                    III. F INDINGS OF FACT AND CONCLUSIONS OF LAW

       In order to fully review the findings of fact and conclusions of law from the habeas

court, we quote them in their entirety here:

               This Court has now held an evidentiary hearing at which it heard the
       testimony of two witnesses. Having duly considered the Application and the
       exhibits thereto, together with the State’s answer, the oral and documentary
       evidence presented at the evidentiary hearing, the trial court record, the
       briefs and arguments of the parties’ counsel, and this Court’s personal
       recollection as the trial judge in this cause, the Court now makes the
       following as [its] Findings of Fact and Conclusions of Law:

                     Statement of the Case and Procedural History

             On 3/19/09, the jury convicted Applicant of Aggravated Sexual
       Assault of a Child, [K.D.], and this Court assessed punishment at 25 years
       TDC-ID. The conviction and sentence were affirmed on direct appeal in
                                                                          Harleston–7

Harleston v. State, 01-09-0481-CR, Tex. App.- Houston [1st District] on
7/22/10. The Texas Court of Criminal Appeals denied discretionary review
on 1/12/11, CPD-1138-10.

       On 4/5/11, Applicant, represented by Danny Easterling[,] filed an
Application for Writ of Habeas Corpus alleging that he was innocent of the
offense of Aggravated Sexual Assault of a Child. On 10/27/11 and 2/23/12
an evidentiary hearing was held. A record from this hearing at which two
witnesses testified and exhibits were offered and admitted. The record from
this hearing was transcribed and two witnesses testified and 3 exhibits were
offered and admitted by the defense.

      For the reasons set forth, this Honorable Court will recommend to
the Court of Criminal Appeals that applicant is entitled to a new trial.

                      Applicant’s Claim of Innocence

       The Defendant is factually and legally innocent and his continued
incarceration due to this unlawful conviction violates the Fourteenth
Amendment and [A]rticle I, Sections 13 and 19 of the Texas Constitution.

              The Standard of Review for Innocence Claims

       The Court of Criminal Appeals has determined that actual innocence
is grounds for collateral attack. Ex parte Elizondo 947 S.W.2d, 202
(Tex.Crim.App 1996). The court granted relief and held that the conviction
of an innocent man would violate the Fourteenth Amendment to the U.S.
Constitution and fundamental notions of fairness. The Elizondo case is
uniquely on point here as[ . . . ]both[ . . . ] involved a childhood accusation
of sexual assault that was later recanted when the child became an adult.
Applicant is raising an actual innocence claim recognized in Herrera vs.
Collins 506 U.S. 390 (1993). A Herrera type of 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
(Tex.Crim.App. 2002). This type of innocence claim requires the applicant
to show by clear and convincing evidence that no reasonable juror would
have convicted him in light of the newly discovered evidence. Applicant
must show that the evidence that he is presenting is “newly discovered” or
“newly available” and that such is affirmative evidence of his innocence. Ex
Parte Spencer 337 S.W. 3d 869 (Tex. Crim. App 2011).
                                                                            Harleston–8

       The “new” evidence upon which applicant relies is the recantation of
the one and only victim/complainant in this case. This could not have been
known to him even with the exercise of due diligence. For this reason, the
evidence satisfies the “newly discovered” or “newly available” standard.
Although a strong presumption of finality to a criminal conviction exists, it
must sometimes yield so that a “fundamentally unjust incarceration” may be
corrected. Ex Parte Franklin 72 S.W 3d 671 (Tex.Crim.App. 2002).

                           FINDINGS OF FACT

1.     The Court finds that newly discovered evidence of the recantation of
       the complainant, [K.D.], exists which demonstrates the factual
       innocence of applicant for the offense of Aggravated Sexual Assault
       of a Child for which he stands convicted in this cause.

2.     This newly discovered evidence of the recantation by the
       complainant, [K.D.], creates a doubt as to the efficacy of the verdict
       sufficient to undermine confidence in the verdict and that verdict
       would be different in a new trial.

3.     The Court finds that by clear and convincing evidence that [K.D.]
       testified falsely about sexual abuse at the jury trial of this cause and
       it was primarily upon this false testimony of [K.D.] that applicant
       was convicted in this cause.

4.     The Court finds that this newly discovered evidence of recantation
       by the complainant, [K.D.] was unknown to the applicant at the time
       of trial and the “failure” to discover such evidence was not due to a
       want of diligence on the part of the applicant or his counsel.

5.     The court finds that the affidavit of the complainant, [K.D.],
       recanting her allegations of Aggravated Sexual Assault of a Child
       against Robert Harleston to be truthful and credible, specifically the
       following statements:

       a.     “Robert never touched me in any physical way.”

       b.     “I accused Robert only because my young hormones kicked in
              and I thought of some things that I wanted to feel.”

       c.     “I was confused, sad[ . . . ]and started telling her that Robert
                                                                           Harleston–9

            touched me and he raped me. I had already been sexually
            active and I used my first experience that I had with this dude
            that I really liked and I started saying Robert forced himself
            upon me only because the bully that I was messing with did
            that to me and also I kinda felt everyone was against me so I
            wanted attention from people.”

     d.     “That’s when the process of me lying and blaming something
            on an innocent man started. I thought about the dude I had
            dealt with and I pictured him as Robert so instead of me
            saying the actual name of the boy I said it was Robert that
            done it to me and Lord knows I was lying.”

     e.     “I felt sick even saying it over and over to the therapist.”

     f.     “I cried once I left from the stand because I know I had
            messed up someone’s life and I didn’t want that. It kills me
            every time I think about what I did and for accusing an
            innocent loving man that only wanted to help me in my life. I
            deeply regret what I have done.”

     g.     “Please help me fix my mix up.”

     h.     “So please help me fix this issue please.”

6.   The Court finds that Applicant’s exhibit number 1, the videotaped
     sworn deposition by [K.D.] on April 7, 2011 in the law offices of
     Danny Easterling, where she recants the trial testimony, to be truthful
     and credible. The court further finds that her sworn testimony that
     day that the Aggravated Sexual Assault of a Child allegations never
     actually happened to be truthful and credible. The Court further finds
     that she fully recanted her allegations of criminal activity by
     Applicant under oath. The Court further finds that her original
     allegations had formed the basis of the charge and her testimony in
     front of the jury that convicted Mr. Harleston of Aggravated Sexual
     Assault of a Child.

7.   The court finds that the complainant, [K.D.]’s testimony at the
     evidentiary hearing on 10/27/11, that her mother, Sheila[], asked her
     to write an affidavit recanting her testimony to not be truthful and
     not credible.
                                                                        Harleston–10


8.    The Court finds that the complainant, [K.D.]’s testimony at the
      evidentiary hearing that her recantation and her affidavit filed with
      the court and attached to the Writ of Habeas Corpus was not true to
      not be truthful and not credible. [K.D.]’s testimony that her whole
      affidavit was a lie and was not credible and not truthful. The Court
      finds that the complainant, [K.D.]’s testimony at the evidentiary
      hearing that she did the affidavit to “throw it out for my mother, so
      he could come home for her” to be not truthful and not credible.

9.    The Court finds that the complainant, [K.D.]’s testimony at the
      evidentiary hearing on this specific question by Judge Shawna
      Reagin:

             THE COURT: The question he is asking now, which is the
             truth, did the abuse happen or did it not?

             THE WITNESS ([K.D.]): No.

             THE COURT: It never did?

             THE WITNESS ([K.D.]): No.

      to be truthful and credible.

10.   The Court finds that the complainant, [K.D.]’s testimony at the
      evidentiary hearing as follows:

             PROSECUTOR: Now, did this man have sex with you or not?

             THE WITNESS ([K.D.]): No.

      to be truthful and credible.

11.   The Court finds that the complainant, [K.D.]’s testimony at the
      evidentiary hearing that the Applicant put his finger in her vagina to
      be not credible and not truthful.

12.   The Court finds that the complainant, [K.D.]’s testimony at the
      evidentiary hearing that the Applicant did not place his penis inside
      her vagina and did not place his fingers inside of her vagina as
                                                                       Harleston–11

      credible and truthful.

13.   The Court finds that the complainant, [K.D.]’s testimony at the
      evidentiary hearing that the Applicant is innocent of this charge to be
      truthful and credible.

14.   The Court finds that the testimony of the complainant’s mother,
      Sheila[], at the evidentiary hearing to be truthful and credible.

15.   The Court specifically finds Sheila[’s] testimony at the evidentiary
      hearing that the complainant, [K.D.], came to her and told her that “it
      had been bothering her that she had lied on an innocent man, Robert”
      to be truthful and credible.

16.   The Court finds that Sheila[’s] testimony at the evidentiary hearing
      that she did not help or tell [K.D.] to write her affidavit of
      recantation to be truthful and credible.

17.   The Court finds that Applicant’s exhibit number 3, the affidavit
      signed by the trial counsel at Applicant’s jury trial, Tyronne
      Moncriffe, that throughout his [representation] the Applicant insisted
      that he was innocent of this felony allegation to be truthful and
      credible.

18.   The Court finds that this original charge of Aggravated Sexual
      Assault of a Child was not true by clear and convincing evidence.
      The original case had no supporting forensic evidence whatsoever
      and was wholly based upon the testimony of the complainant, [K.D.],
      who has now fully recanted her allegations. Mr. Harleston has never
      admitted to this crime and has consistently denied that it ever took
      place and that he is innocent.

19.   The Court finds that without [K.D.]’s original allegations, this
      charge could not have gone forward. The Court finds that there is no
      other evidence to support the charge of Aggravated Sexual Assault
      of a Child or the conviction by the jury.

20.   The Court finds that the applicant has met the threshold of clear and
      convincing evidence to establish his actual innocence based upon the
                                                                                      Harleston–12

               credible and truthful recantation by the only witness for the State,[2]
               the complainant [K.D.], a lack of any evidence pointing to this
               incident actually taking place, and the demeanor and truthful
               statements given by both [K.D.] and Sheila[] at the videotape
               deposition and on the witness stand at the evidentiary hearing.

       21.     The Court finds that based upon all of the credible evidence and it’s
               own determination of the witnesses’ truthful and credible behavior
               that this claim should merit relief.

                                  CONCLUSIONS OF LAW

       1.      This Court concludes that pursuant to Ex Parte Elizondo and its
               progeny that the issue that the further imprisonment of the applicant
               who is innocent of this charge is a violation of the due process clause
               of the Fourteenth Amendment to the United States Constitution.

       2.      The Court concludes that based upon the credible testimony of the
               witnesses and affidavits, in a sworn statement, a videotape
               deposition and sworn testimony at an evidentiary hearing and the
               lack of other supporting evidence to sustain the original charge that
               the applicant has satisfied his burden proof by clear and convincing
               evidence. He is innocent of this charge.

       3.      The Court concludes as a matter of law that the applicant has plead
               facts which establishes his actual innocence and has proven them by
               clear and convincing evidence and thus merits relief.

       4.      The Court concludes that the applicant has proven by clear and
               convincing evidence that no reasonable juror would have convicted
               him of the Aggravated Sexual Assault of [K.D.] in light of the new
               evidence presented to this Court.

                RECOMMENDATION AND ORDER OF THE COURT

              The Court hereby recommends to the Court of Criminal Appeals to
       vacate the judgement of conviction and Order a new trial and that the


       2
        The record shows that the State called nine witnesses to testify at Applicant’s trial,
including K.D.
                                                                                     Harleston–13

       applicant be returned to the custody of the Harris County Jail to answer any
       indictment made against him arising out of this cause.

                                       IV. H ABEAS RECORD

                                                  1

A. Complainant’s habeas testimony

       The record shows that on February 17, 2011, K.D. hand wrote an affidavit3 at

Sheila’s house recanting her accusations against Applicant. This affidavit forms the basis

for Applicant’s argument that he is entitled to relief. K.D. begins the affidavit by stating

that “[Applicant] never touched me in any physical way,” and that she falsely accused

him because of her “young hormones” which caused her to think of “some things [she]

wanted to feel.” Regarding the night of the incident, K.D. wrote:

       Then my grandmother passed away and that made me terribly sad and I
       started feeling very alone, I started spacing my self away from my family
       and on this night I was sad and Robert was talking to me and helping me
       grieve and that ment a lot . . . . [T]hen the conversation [about sex] I had
       with my friends was playing over and abt things they had done with a boy.
       Robert comforted me and I starting thinking thoughts abt if Robert could
       touch me like my freinds said they felt. Robert never did what I was
       thinking of from my friends conversations with me.

K.D. then stated that she eventually ran away from home because her mother and

Applicant were arguing a lot, and that she ended up living with her Uncle Gregory and his

family. While at her new home, K.D. wrote that her curiosity about sex increased:

       I was in school 7th grade at Hodges Bend Middle School. I met knew girls
       that were older than me once again and they talked about sex but on a much


       3
           Excerpts from the handwritten affidavit have not been edited for grammar or spelling.
                                                                                  Harleston–14

        deeper level than when I was in the 6th grade. [B]ut I still was the virgin out
        the group and I wanted to know what it felt like but I just didn’t know how
        to do it or who to do “it” with.

Next, K.D. stated that she got in trouble for sneaking a boy into her room at night, that the

boy (now her ex-boyfriend) later confronted her in front of her house after mistakenly

thinking he saw her with another boy, and that her Uncle Gregory came out with a

shotgun to chase him away. Following the aforementioned incident, K.D. subsequently

wrote that she was sad and confused, that she had been sexually assaulted by a boy whom

she liked, and that in her state of confusion, she decided to blame the sexual assault on

Applicant instead. In contrast to the evidence at trial, K.D. stated that she first revealed

the abuse to her cousin and then her uncle and aunt (and not the school counselor as she

testified at trial).

        I was grounded, I felt like I had no life, then my cousin/sister leah smith
        came home from college . . . and I was down there talking to her about
        things and we got on the topic of my mama (Sheila) and then robert . . . . So
        when we talked about things that was going on with my mama and robert
        and I started telling her that robert touched me and he raped me . . . and I
        used my first experience that I had with this dude that I really liked and I
        started saying robert forced himself upon me only because the boy that I
        was messing with did that to me and also I kinda felt every body was
        against me so I wante attention from people.

Recounting the events of the following day, K.D. wrote that she was taken to see Child

Protective Services (“CPS”) workers and that she repeated the same story to them about

having been sexually assaulted by Applicant, although it was actually a boy who had

assaulted her.

        [I] woke up the next morning and went to school, their were people coming
                                                                                 Harleston–15

       to take me out of school, taking me to CPS places and I got questioned by
       some lady in a room then we went back to the place . . . and that’s when the
       process of me lying and blaming something on an innocent man started. I
       thought about the dude I had dealt with and I pictured him as robert so
       instead of me saying the actual name of the boy I said it was Robert that
       done it to me lord knows I was lying and I felt sick even saying it over and
       over to therapist it just made it easier for me to be comfortable enough to
       say it when I got in the courtroom and I cried once I left from the stand
       because I know I had messed up someones life and I didn’t want that.

K.D. then concluded her affidavit:

       It kills me every time I think about what I did and for accusing an innocent
       loving man that only wanted to help me in my life. I deeply regret what I’ve
       done to cause this confusion and I really am sorry for wasting your time . . .
       so please help me fix this issue. Please!

       After Applicant’s postconviction counsel received the affidavit, he filed this

application for a writ of habeas corpus on behalf of Applicant. Two days later,

Applicant’s counsel interviewed K.D. about her recantation in a recorded video

deposition. Responding to counsel’s questions, K.D. explained that her brother Kedrick,

who testified for Applicant at his trial, and some other friends took her to the office of

Applicant’s attorney for the deposition. She confirmed that she was recanting, that the

story she wrote in her affidavit was true, that she was recanting of her own free will, and

that no one had pressured her to recant.

       In October 2011, the habeas court conducted a live evidentiary hearing at which

K.D. testified. At the hearing, however, K.D. immediately repudiated her recantation and

stated that the “whole affidavit is a lie,” that she wrote it only because she wanted to

“please my mother,” and that her mother asked her to write it “because she wants
                                                                                 Harleston–16

[Applicant] home.” Applicant’s counsel then began asking K.D. about her written

affidavit:

       [COUNSEL]: Okay. And where did you write it?

       [K.D.]: At my mother’s house

       [COUNSEL]: Okay. Did you write it of your own free will?

       [K.D.]: No.

       [COUNSEL]: Why not?

       [K.D.]: Because [Sheila] asked me to write it.

       [COUNSEL]: Okay. Why did she ask you to write it?

       [K.D.]: Because [Sheila] wants him home.

       [COUNSEL]: Okay. All right. So why did you write it?

       [K.D.]: To please my mother.

       [COUNSEL]: Okay. In that affidavit you start out in the first paragraph
       saying Robert never touched me in any physical way. Do you remember
       that?

       [K.D.]: Yes.

       [COUNSEL]: And you swore to that under oath?

       [K.D.]: Yes.

       [COUNSEL]: Is that the truth?

       [K.D.]: No.

       [COUNSEL]: You lied in your affidavit?

       [K.D.]: Yes. And I admit that I did lie. That whole affidavit is a lie.
                                                                                   Harleston–17

Applicant’s counsel then followed up by asking K.D. about the reasons she gave in her

affidavit for making up the accusations, and K.D. responded that she had lied about those

too:

       [COUNSEL]: Now, let’s talk about your reasons that you told me in the deposition
       where you lied in court and to the police, to the DA’s, CPS, and your therapist, and
       even back to the first person, your counselor at school, okay. Do you remember
       you discussing that?

       [K.D.]: Yes.

       [COUNSEL]: Okay. Do you remember telling me that your young hormones were
       kicking in back around that time? Do you recall telling me that?

       [K.D.]: Yes.

       [COUNSEL]: Was that true or false?

       [K.D.]: That’s false.

                                       *       *       *

       [COUNSEL]: Okay. You told me you hung out with older girls and we talked
       about sex. That was true, wasn’t it.

       [K.D.]: No.

       [COUNSEL]: That was not?

       [K.D.]: I don’t really -- I didn’t have friends. I didn’t have any, like, friends to
       hang out with. I wasn’t able to go outside. I didn’t have friends.

       [COUNSEL]: Do you remember telling me that you had your first experience with
       sex, it was terrible and it was with a boy named Dominique?

       [K.D.]: Yes.

                                       *       *       *
                                                                      Harleston–18

[COUNSEL]: And you told me, if you recall, that he forced you and you were
scared you weren’t ready. Do you remember?

[K.D.]: Yes.

[COUNSEL]: Okay. Was that true or false?

[K.D.]: That was false.

[COUNSEL]: You made that up?

[K.D.]: Yes.

[COUNSEL]: Remember you told me, I decided just to blame it on [Applicant]
since Dominique was not around. Do you remember telling me that?

[K.D.]: Yes.

[COUNSEL]: Is that true or false?

[K.D.]: False.

                               *     *      *

[COUNSEL]: Why’d you lie to me about something so important?

                               *     *      *

[K.D.]: As far as Dominique?

[COUNSEL]: Yes.

[K.D.]: Dominique’s not real. There is no Dominique.

At one point during the hearing, K.D. suddenly became unresponsive.

[COUNSEL]: Well, here we are, we’re in court now. Which [story] is the
truth, which version is the truth, [K.D.]? Because you’ve given different
versions. You understand that, right?

[K.D.]: Yes.
                                                                                Harleston–19

      [COUNSEL]: Radically different versions. You understand that, right?

      [K.D.]: (No response.)

      [COUNSEL]: I mean, it either happened or it didn’t happen. Do you know
      what we’re talking about here?

      [K.D.]: Yes.

      [COUNSEL]: Okay. So which version is true, sexual abuse happened or it
      didn’t happen?

      [K.D.]: (Pause.)

      [COUNSEL]: Let the record reflect she’s taking a long time to answer this
      question.

      [K.D.]: I am.

                                     *       *       *

      [COUNSEL]: I want the record to reflect she’s taken 20 to 30 seconds to
      answer a question and looking around the courtroom, Judge.

      [STATE]: I’d also like the record to reflect that the applicant in this writ is
      giving her a major stare down while she’s thinking.

      [APPLICANT]: What am I supposed to do, my life is on the line.

      [COURT]: Mr. Harleston, you don’t talk. You don’t talk.

When K.D. was unresponsive for about a minute, the judge asked her directly:

      [COURT]: [W]hich is the truth, did the abuse happen or did it not?

      [K.D.]: No.

      [COURT]: It never did?

      [K.D.]: No
                                                                                Harleston–20

       [COURT]: Thank you.

       On cross-examination, the State commented that K.D.’s demeanor during

questioning by Applicant’s counsel changed significantly, and it asked her what she was

feeling right then. K.D. responded that she did not care anymore, and that “I just hope that

him and my mama are happy, that’s all I want.” Later, K.D. testified that she told Lynette

Hulette, a third cousin of Barbara, that she wrote the affidavit recanting her allegations

because Sheila kept asking K.D. to write one and telling her that Applicant “had been in

jail long enough” and it was time to get him home. K.D. then agreed with the State when

asked whether she agreed to lie about Applicant sexually assaulting her so that “Sheila

could have her man back . . . .” After additional questioning, K.D. partially repudiated her

recantation and stated that Applicant had inappropriately touched her, but that the incident

in the bedroom never happened. When K.D. was asked again on redirect whether

Applicant had touched her sexually, K.D. implicitly repudiated the rape allegation when

she replied that Applicant had touched her genitals with only his fingers but not with his

penis. When informed that such an act would still constitute sexual assault, K.D. changed

her story once again and stated that Applicant never touched her sexually at all.

B. Inconsistencies

       The habeas court found that K.D.’s trial testimony was not credible, but that

K.D.’s handwritten affidavit, her videotaped deposition, and one of her (several) stories at

the live evidentiary hearing that Applicant is innocent, were credible. However, the

habeas court found that K.D.’s repudiation of her recantation and subsequent repudiation
                                                                                     Harleston–21

of her second recantation were not credible. All of these findings were made without

explanation. However, a review of K.D.’s stories shows that they are internally

inconsistent and present implausible explanations of why K.D. may have made up the

sexual-assault allegations. Perhaps the most egregious inconsistency is K.D.’s statement

in her affidavit that she accused Applicant of raping her after Applicant comforted her

when her grandmother passed away. Allegedly because of Applicant’s support, K.D.

started having thoughts about Applicant touching her “like [her] friends say they felt” in

their discussions with K.D. about sex, and her “young hormones” compelled her to make

something up that she had fantasized about.4 However, the night in question was

Thanksgiving 2004, and K.D.’s grandmother did not pass away until January 9, 2006.

Thus, it would have been chronologically impossible for Applicant to help K.D. grieve

the loss of her grandmother if her grandmother was not yet deceased. The only other ways

to interpret K.D.’s story would be that she confused the relevant dates or, because she

appreciated Applicant for helping her grieve the loss of her grandmother in 2006, she

made up allegations that he raped her in 2004, which is implausible.

       Later in her affidavit, K.D. stated that she allegedly made the false sexual-assault

allegations against Applicant, instead of against a boy who had actually raped her (but she

“really liked”), to her cousin Leah Smith: “I used my first experience that I had with this


       4
         In this story, K.D. implies that she fantasized about engaging in sexual intercourse with
Applicant because she saw him as a “father figure” and someone who was helping her cope with
a difficult grieving process after her grandmother died. However, in another story, K.D. states
that she told one of her cousins that “Robert touched me and he raped me . . . .”
                                                                                Harleston–22

dude that I really liked and I started saying Robert forced himself upon me only because

the boy I was messing with did that to me and also I kinda felt every body was against me

so I wante[d] attention from people.” Her assertion that the first person she told about the

abuse was her cousin was contradicted by testimony previously given by K.D.

Nonetheless, after revealing these apparently false, but explosive allegations, and

although she wanted attention from people, she inexplicably stated that she asked Leah

not to say anything about the abuse to anyone. Moreover, K.D. never explained why she

chose not to accuse the boy who had actually raped her or why she decided to blame an

apparently innocent person for a rape committed by another person.

       During the live evidentiary hearing, K.D. told a number of different, conflicting

stories. First, K.D. repudiated the recantation in her handwritten affidavit and claimed

that the whole “affidavit [was] a lie.” Applicant’s counsel then asked K.D. about each

statement in her affidavit, and she denied that each of the statements in her affidavit was

true. For example, she stated that her hormones were not “kicking in” around the time of

her allegations, and that she did not hang out with older girls and talk about sex because

she “didn’t have friends” and could not go outside. In addition, she testified that the story

she told about a boy named Dominique who forced himself upon her and for which she

blamed Applicant was not true. The boy Dominique did not exist. Applicant’s counsel

also asked her about her statements in the recorded deposition at counsel’s office

confirming her handwritten recantation, and she testified that she had also lied in the

recorded deposition. Then, when Applicant’s counsel told K.D. that she had told
                                                                                 Harleston–23

“radically different” stories, and he asked her which story was true, K.D. did not respond

for almost a full minute. During this period, the State objected that “the applicant in this

writ is giving [K.D.] a major stare down while she’s thinking.” Finally, the judge directly

asked K.D. whether the sexual assault by Applicant happened, and K.D. suddenly

recanted again and testified that Applicant did not sexually assault her. Later, she changed

her story a third time, in the form of a partial recantation when she alleged that she was

being truthful about Applicant inappropriately touching her, but that she had lied about

Applicant raping her. However, when Applicant’s counsel noted that inappropriate

touching could still constitute sexual assault, she changed stories yet again and returned to

fully recanting and claimed that Applicant had never touched her.

       K.D.’s first recantation in the form of her handwritten affidavit contained her most

detailed statements regarding what “actually happened” if Applicant did not sexually

assault her, as she originally alleged and the jury believed. Her two later recantations

merely consisted of perfunctory statements that she was not sexually assaulted by

Applicant. In addition, K.D. testified that she falsely swore out the affidavit because K.D.

wanted her mother to be happy, and her mother had pressured her to write the affidavit.

Furthermore, because Sheila had been pressuring her to write the affidavit, K.D. thought

that her mother would be happy with Applicant and that her mother wanted Applicant to

get out of jail.

                                              2

A. Sheila’s habeas testimony
                                                                                 Harleston–24

       In February 2012, the court continued its evidentiary hearing at which time Sheila

testified. At that hearing, Sheila began her testimony by stating that she and K.D. “always

had a great relationship.” But she also testified that K.D. was not a truthful girl growing

up, and that she was “deceitful.” When asked whether she believed the allegations made

by K.D. against Applicant, she demurred and stated that she had her doubts because she

did not believe that it was in Applicant’s character to sexually abuse a child. She also

testified that it was K.D. who had first approached her to confess that she had falsely

accused Applicant and that she did not pressure or influence K.D. to recant because she

had no motive to pressure K.D. because she and Applicant were no longer in a

relationship. When asked whether K.D. had asked to visit Applicant in county jail, Sheila

responded that she had, but Sheila was concerned about whether K.D. could handle

seeing him. Apparently Sheila did not know why K.D. wanted to visit Applicant in the

county jail, but she testified that K.D. visited him twice.

       On cross-examination, the State asked Sheila how her relationship with K.D. could

have been “great,” as Sheila characterized it earlier in her testimony, if Sheila did not

even know where K.D. was living since moving out of her home and having almost no

contact with her, which eventually culminated in them not speaking anymore. Sheila

responded, “I don’t know where she went to, and it bothered me. I didn’t know how to get

in touch with her.” The State then asked Sheila if she discovered through a cousin

(Lynette Hulette) that K.D. was living in a shelter, to which she responded that she did

become aware of that fact, but that K.D.’s stay at the shelter was only “for a few days.”
                                                                                 Harleston–25

Sheila also stated that she was living with Lynette at that time and tried to get K.D. to

move in with them, but K.D. refused to stay at Lynette’s house because “she didn’t want

to be at [her] house.” Finally, the State asked Sheila if she still loved Applicant and

whether she would still try to “have a life” with him if he were released from prison, to

which she responded that she loved him at one time but had no interest in having a life

with him, even when he was released from prison.

B. Inconsistencies

       The habeas court’s findings with respect to Sheila’s habeas testimony are directly

contradicted by other evidence in the record. Sheila testified that she did not influence

K.D., and that she had no motive to do so because she and Applicant were no longer

together. And the habeas court found this testimony to be credible and truthful. However,

less than two months after the hearing, and before the findings of fact and conclusions of

law were signed by the habeas court, a letter was sent to Applicant, in which the author

stated that he or she loved Applicant, and that he or she still considered himself or herself

his “wife.” The letter was signed, “Love you always and forever.” When compared with

the other written letter in evidence signed by Sheila, it appears to have been written by the

same person. Moreover, besides the handwriting in both letters appearing virtually

identical, both letters use many of the same phrases. This evidence was available to the

habeas court, but without addressing any of Sheila’s conflicting actions or testimony or

the conflicting record evidence, the habeas court found Sheila’s statement to be truthful

and credible that she was no longer in a relationship with Applicant and had no motive to
                                                                                       Harleston–26

influence K.D.5

                                                  3

A. Other record evidence

       Applicant’s evidence in the habeas record consisted of the video-taped deposition

of K.D., a transcript of that deposition, and an affidavit from Applicant’s trial counsel.

Trial counsel’s affidavit stated that Applicant maintained his innocence throughout his

representation of Applicant. The State included a copy of general orders of the trial court;

a copy of Applicant’s judgment, sentence, and indictment; a digital video disc of K.D.’s

interview at the Fort Bend Children’s Assessment Center; K.D.’s handwritten affidavit;

one letter addressed to Sheila’s son LaGarrin, signed by Sheila, and with her name and

return address written on the envelope; a second unsigned letter addressed to Applicant

with Kedrick’s name and return address; and an affidavit from Lynette Hulette, a third

cousin of Barbara .

       Lynette’s affidavit was filed on November 22, 2011, about three months before

Sheila testified at the live evidentiary hearing. Lynette stated in her affidavit that prior to

Barbara’s death, the entire family, including herself, was “very close and spent a lot of

time together.” She went on to say that “Sheila[] has a very poor reputation for truth-




       5
         Evidence at Applicant’s trial also indicated that, although Sheila testified that all of her
children attended school and graduated, her two sons did not finish high school and K.D. had
been held back one year in school because of attendance problems. Sheila also eventually
admitted that Kedrick had dropped out of school and obtained his GED, and that LaGarrin could
not finish high school because he was incarcerated but was working towards his GED.
                                                                                 Harleston–27

telling in our family. Sheila’s own mother once commented that her daughter, Sheila, was

a ‘big liar’ because she can look you straight in the face and tell a lie.” She also agreed

with Sheila’s habeas testimony that Sheila did live with her for a time and, commenting

on that period, she stated

       Sheila told me that she was no longer in touch with [Applicant], but while
       she lived with me [from mid-August to September 30, 2011,] she received
       numerous calls from the Harris County Jail. On the day of [Applicant’s]
       hearing in September 2011, I received a collect call from the jail at my
       home and accepted the charges. It was [Applicant], he identified himself
       and then asked for Sheila. I was very angry that Sheila had obviously given
       him or his lawyer my phone number. I could hear Sheila’s side of the
       conversations with Robert and . . . . I was shocked to learn that Sheila was
       helping [Applicant].

Lynette then stated that “Sheila said that [Applicant] had been in jail long enough and it

was time for him to come home.” Despite the fact that this affidavit had been admitted

into the habeas record approximately three months before Sheila testified, Applicant did

not question Sheila about Lynette’s affidavit or address it in any way. In addition, the

habeas court never made a finding with respect to Lynette’s affidavit.

       Lynette also described an incident when her sister, L.A., got in touch with K.D.

over the social-media platform Facebook. She stated in her affidavit that, after L.A. spoke

with K.D., L.A. asked Lynette to talk to K.D. “because Sheila was putting a lot of

pressure on [K.D.] to help [Applicant] and get him out of jail.” When Lynette spoke with

K.D., she asked “[K.D.] point blank if [Applicant] had sexually assaulted her and she

admitted that he had.” When Lynette asked K.D. about the handwritten affidavit she

wrote, K.D. told her that Sheila kept harassing her to recant, and K.D. said that she
                                                                                Harleston–28

believed that if she wrote the affidavit, Sheila would start caring for her again. Lynette

also explained that K.D. told her that “around Christmas,” Sheila made K.D. speak with

Applicant over the phone, and “he apologized for ‘everything.’” After that, Lynette was

very angry with Sheila “because it was obvious that she was putting [Applicant] ahead of

her child.”

       Lynette also relayed a personal recollection of being at Barbara’s apartment years

ago when K.D. and Applicant came back from a convenience store, and she stated that

“when they came back [K.D.] had a bag of candy” that she threw on the ground in an

angry manner. Later, K.D. confirmed to Lynette that she was angry because “[Applicant]

had touched her in the car when they went to the store.” Finally, Lynette overheard a

conversation between Sheila and K.D. while K.D. was living in a shelter. During that

conversation, Lynette believed that K.D. asked to move in with Sheila because she heard

Sheila lie and tell K.D. that “she was living with a friend in Pasadena and that the woman

didn’t want K.D. to come live with her.” But Lynette stated that Sheila was living with

her at the time, and that she would have welcomed K.D. into her home. She further stated

that Sheila told her that she did not want K.D. to know where she was living. Based on all

of this, Lynette concluded her affidavit by stating,

       In my opinion, Sheila doesn’t care about [K.D.] as a daughter and [K.D.] is
       desperate for the love of a mother from Sheila.

Although it is not clear why Lynette was not called as a witness to testify at the live

evidentiary hearing, no statements contained in her affidavit were contradicted by another
                                                                                  Harleston–29

witness, except Sheila’s claim that K.D. did not want to live with them and instead

preferred living at a shelter. Also, no witness disputed that she was a close family member

with knowledge about the family or implied at any point that Lynette had any motive

other than K.D.’s well being. Finally, as noted previously, the habeas court never made a

finding of fact with respect to the credibility of the affidavit, nor did the court even

acknowledge its existence.

                                        V. T HE TRIAL

         We now turn to the evidence adduced at Applicant’s trial before weighing

Applicant’s newly discovered evidence against the other inculpatory evidence offered at

trial to determine whether Applicant met his burden to prove he is actually innocent of the

crime. K.D. testified that, before Applicant came to live with them, she and Sheila “never

did see eye-to-eye with each other, but me and [Barbara], . . . she was, like, the one that

did mostly everything for me, and so that’s . . . why I always looked to her as like a

mother to me.” She also testified that, after Applicant came to live with them, Sheila

would be nice to her when Applicant was around, but when he was not around, she would

“go back to being mean . . . .” And she stated that when Applicant first moved in, she

liked him a lot because he was nice and comfortable to be around because he was “like a

protector” and that he would stand up for her during “neighborhood issues.” She also

stated that he would do “pretty much anything [she] wanted[,]” including buying her

candy.

         K.D. then testified about the night of incident, Thanksgiving 2004. That night, a
                                                                                 Harleston–30

number of people came over for dinner, including her Uncle Gregory and his wife, as

well as other cousins and friends. K.D. thought that there were about 12 or 13 people

present in total. After everyone ate dinner, they sat around “talking and stuff, then they

left.” After the guests left, K.D. stated that just she, Barbara, Applicant, and Sheila

remained at the apartment. At some point, Barbara went to bed and K.D. went into Sheila

and Applicant’s room to watch television. K.D. was sitting on the floor next to the bed,

while Applicant and Sheila were both lying on the bed. At some point, Applicant sat

down next to K.D. and began to rub her back and arms in a manner that made her

“uncomfortable.” K.D. testified that her mother was still lying on the bed at this time, but

that she did not know whether she was actually asleep or not.6 Applicant then began to

ask K.D. about her future plans and having turned twelve years old on November 19.

K.D. stated that she remembered the conversation because they had never had those kinds

of conversations previously. After talking with K.D., Applicant reached his hands under

her clothes and began to fondle her genitals and told her in a low voice, “almost like a

whisper,” “[T]his is going to be between me and you . . . .” K.D. then felt Applicant

“undoing” her capris, pull them down to her ankles, and start fondling her vagina through

her underwear. He then reached under her underwear and inserted “his fingers” into her

vagina. After he stopped molesting her, K.D. left the bedroom and went to the bathroom




       6
        Later during K.D.’s direct examination, the State asked her if she suspected that her
mother was awake during the sexual assault in the bedroom, and K.D. responded that, although
she didn’t know for sure, she suspected that Sheila was awake.
                                                                                  Harleston–31

to cry. She also testified that she kept a little knife in the bathroom under the sink and she

began cutting herself to try to “[t]ake away [her] pain.”

       After leaving the bathroom, K.D. was sitting on the couch and feeling disgusted

“[b]ecause of what he did, because I really thought that I could trust him, and

[Applicant] . . . proved to me that I couldn’t . . . .” Then, later, as she was watching

television on the couch in the living room, Applicant entered the room and sat next to her.

K.D. moved away from him, but Applicant told her “not to move away from [him].” He

then pulled K.D. next to him and starting kissing her. K.D. remembered that he put his

tongue in her mouth while he was kissing her and that his mouth smelled of cigarettes and

alcohol. Applicant then laid K.D. down on her back on the couch and got on top of her.

Once on top of her, he pulled her pants down again, put one hand over her mouth, and

inserted his penis into her vagina. K.D. testified that she knew it was his penis because of

the difference in size she felt in relation to when he inserted his fingers into her vagina.

She also stated that it was painful when he inserted his penis into her vagina, and that she

could not scream because he was covering her mouth with one of his hands. When asked

why she did not tell anyone what happened that night or after the incident was over (until

the outcry), K.D. responded that she feared that her mother would not believe her

“[b]ecause [Applicant] used to brainwash her.”

       On cross-examination, defense counsel asked K.D. about her relationship with

Sheila, and K.D. testified that she first started becoming angry with Sheila “[b]ecause I

felt that she knew about the way [Applicant] was treating [me], and she didn’t do
                                                                               Harleston–32

anything about it.” She went on to explain that she was mad at Sheila because,

       once everything started happening I didn’t really want to have anything to
       do with him but she would still force me to be around him, like, if he
       wanted to go to the store to get something he was, like, if you going to get
       anything you going to come because if you don’t I’m not going to get it. So
       then after that that’s when she would tell me go ahead and go with him and
       stuff and I would tell her I don’t want [to] and she would still make me go.

Defense counsel then asked K.D., “If you don’t tell Sheila about that then how does she

know something is going on?” K.D. responded that any mother “would know if their

child is acting a certain way around a person. If they [were] all nice and want to be around

them all of the time and all of the sudden they stopped, then a mother would know

something is wrong, but obviously she didn’t care about that.”

       Christina Carson was the counselor at K.D.’s school she cried out to in April 2007.

Carson was not K.D.’s assigned school counselor, and she initially met with K.D. at the

request of a concerned teacher who noticed K.D.’s demeanor had changed and that she

was crying unexpectedly. Carson testified that she knew K.D. to be “a happy-go-lucky

student, real respectful and mannerable.” However, Carson also stated that K.D. told her

that she was being bullied at school after she had sex with a popular male student who

then maliciously boasted about it “as though [she] was just another notch on his belt loop

of taking someone else’s virginity.” According to Carson, this male student was well

known for having done the same thing to other girls at the school. After learning that

K.D. was sexually active, and following the standard school protocol when dealing with

such a student, Carson asked K.D. about her sexual history. In response, K.D. revealed to
                                                                                Harleston–33

Carson that her first sexual experience was with Applicant and that he “put his hands in

between her legs and had put his penis inside of her” when she was twelve years old.

Carson immediately notified law enforcement and K.D.’s uncle, Gregory, whom she was

living with at the time of her outcry. Following an investigation, Applicant was arrested

and charged with aggravated sexual assault of a child, to which he pled not guilty.

       K.D. was subsequently taken to the Fort Bend Children’s Assessment Center for a

forensic interview. Mary Ann Reinke, who conducted the interview, testified that K.D.

was “talkative” and “bubbly” at first, but that her demeanor changed when K.D. began to

talk about the abuse. For example, K.D. cried and found it difficult to talk about the rape.

Reinke also testified that, based on her experience and training, she had no reason to

believe K.D. was lying because of K.D.’s ability to tell the story of the rape with such

consistency and with specific sensory details.

       K.D. also began visiting Nicole Turner, a therapist who specialized in counseling

child-abuse victims. K.D. met with Turner about once a week from April 2007 to August

2008. Turner also testified that K.D. maintained consistency with her story throughout the

applicable time period, which Turner believed would have been hard to do if a child were

lying. And according to Turner, K.D. displayed the usual symptoms of a child who had

been psychologically traumatized by sexual abuse, and Turner was not aware of any

reason to believe K.D. had an ulterior motive to make up the accusations.

       Gregory testified that Barbara raised K.D. and was the head of the household while

she was alive. He also testified that Barbara lived in apartments and would move around.
                                                                                Harleston–34

With respect to the night of the incident, Thanksgiving 2004, Gregory stated that he and

his wife went to Barbara’s apartment for dinner. Barbara, K.D., Gregory, his wife, Sheila,

Sheila’s children, Applicant, and some family cousins and friends were all present that

night, and they played cards and “different things like that.” But Gregory testified that he

and his wife did not stay the night, and that he could not definitively say who spent the

night at Barbara’s apartment that night.

       On cross-examination, Gregory also testified at length about the acrimonious

relationships between K.D. and Sheila, and Gregory and Sheila in regard to K.D.’s

upbringing after Barbara passed. For example, Gregory testified that around June 2006,

K.D. called him from one of Sheila’s friend’s houses to ask Gregory to pick her up, and

since that time K.D. has lived with Gregory and his wife. For a short time after K.D.

began living with Gregory, Sheila wanted K.D. to move back in with her, but after a

month or so she stopped asking. Gregory also testified that he had concerns about K.D.

living with Sheila because he did not believe that K.D. was being forced to attend school,

that K.D. was not being properly restricted in her behavior, and that she was not being

looked after properly. He stated that his concern about her attendance at school was

because K.D. failed a grade due to lack of attendance “because [Sheila] wouldn’t wake

her up to get her ready for school.” When asked whether K.D. ever wanted to visit Sheila,

Gregory responded that she did because K.D. “felt a loyalty there[,]” but that he would

not allow K.D. to visit Sheila because he knew that Sheila had “always been jealous of

[K.D.].” He gave an example to explain why he believed that Sheila was “very jealous” of
                                                                                 Harleston–35

K.D.: “If my mother would try to purchase [K.D.] something . . . , [Sheila] would get

upset about it, because my mother adopted her, but she allowed her to call Sheila

mother . . . .” He also stated that he believed that Sheila’s jealousy of K.D. affected the

way Sheila treated the allegations in this case.

       Later, defense counsel showed some pictures to Gregory with the purpose of

impeaching K.D.’s testimony that Sheila’s children were not at the apartment the night of

the incident. Gregory agreed that the pictures were taken the night of Thanksgiving dinner

in 2004 and that Kedrick and LaGarrin were in some of the pictures. However, he also

testified that the pictures were taken earlier in the evening when people were still there,

and that because he and his wife left the apartment when everyone was still awake, he

could not say whether Kedrick and LaGarrin slept in the living room that night.7 Defense

counsel also questioned Gregory about K.D.’s behavior since moving in with them in

June 2006. Specifically, defense counsel asked Gregory about an incident when “one

morning [he] found a little teenage boy 15 years old in her bedroom.” The time was

approximately 5:30 a.m. Gregory testified that K.D. was deceptive when she first moved

into his house and that K.D. had lived with them for five or six months before the incident

with the boy happened. He also stated that he was “very upset” about the incident.

Defense counsel then asked Gregory whether he knew that the boy he caught K.D. with




       7
        Defense counsel’s argument was that Kedrick and LaGarrin, if they slept at the
apartment the night of Thanksgiving 2004, would have been present when Applicant purportedly
sexually assaulted K.D. on the couch after the bedroom incident.
                                                                                 Harleston–36

was the same boy who claimed to have taken her virginity, and he replied that that was

“very new to me.” Defense counsel concluded his cross-examination of Gregory by

returning to the topic of whether K.D. was manipulative and capable of lying. Gregory

agreed that K.D. did let the boy in her room and that she was manipulative when she first

moved in with Gregory and his wife, but he denied that K.D. would lie about something

like accusing one of her brothers (Kedrick) of sexually assaulting her.8

       After the incident with the boy in her room, issues at school related to the boy, and

the allegation against Kedrick were brought up, the State recalled K.D. to the stand. K.D.

agreed that she had let the boy into her room, and that the rumor going around school was

about him and her “messing around.” She also testified that the other girls were mad

“because [K.D.] was talking to him,” so they devised a plan to start rumors about K.D.

and the boy. Originally, K.D. went to see Carson, a counselor at her school, because she

was upset about the rumor situation, but she later told Carson that Applicant had sexually

abused her. K.D. testified about the allegation against Kedrick and other instances of

inappropriate sexual touching by Applicant when she rode with him alone to the store.

She also clarified that, Thanksgiving night of 2004, LaGarrin and Kedrick left the

apartment for the night after her Uncle Gregory did. When asked about her relationship

with Sheila, K.D. explained that she did not think that Sheila would believe her if she told

her what Applicant had done because “[s]he was too in love with him. She left her own


       8
       After crying out about Applicant, Carson asked K.D. if anyone else had ever touched her
inappropriately, and she responded that her brother Kedrick had.
                                                                                     Harleston–37

family just [to] be with him.”

       After the State rested its case, the defense called Kedrick and then his mother

Sheila to the stand in Applicant’s defense. Kedrick testified that, as the older brother, he

was the man of the house, but there was a time that he and his brother were “not going in

the right direction.” Specifically, he stated that they were “catching on with wrong crowds

of people, hanging out at all times of night, [they] started hanging with gang members and

stuff like that.” However, after Applicant came to live with them, he “tried to show us the

right way. He started being the father figure that we didn’t have in the household.” When

asked about Thanksgiving night of 2004, Kedrick testified that Applicant left after dinner

about the same time that Gregory and his wife left, and that he did not return that night.

He also testified that he and his brother stayed at the apartment the entire day and night,

and that K.D. had problems growing up, including running away for days at a time.9 He

also denied sexually assaulting K.D. On cross-examination, the State asked Kedrick about

a number of things, including being a deacon at his church, working for a pastor, and

being responsible. However, Kedrick admitted that he was no longer with his “baby’s

momma” and that he had pled guilty to assault with family violence for assaulting her

while she was pregnant with his child.

       Sheila testified that her relationship with K.D. began to deteriorate after Applicant




       9
        Kedrick stated that, although he and his brother often stayed overnight at their friends’
places, Applicant and his mother had put a stop to it by the time of the incident and that he
remembered being home that night.
                                                                                        Harleston–38

moved into the apartment because Sheila was more strict with K.D. She also testified,

after looking at the same pictures from Thanksgiving 2004, that Applicant left the

apartment and did not sleep there that night. She also stated that, while the children were

cleaning after dinner, Barbara had already gone to bed and Sheila went to take a shower

before going to bed. Sheila was adamant that K.D. slept with Barbara that Thanksgiving

night and that K.D. never went to Sheila and Applicant’s bedroom to watch television

with her. Sheila also discussed how K.D. began to rebel against her authority even more

once a letter written by K.D. was found,10 and as a result, her freedom of movement was

restricted to minimize the amount of time she would be by herself.

       On cross-examination, Sheila stated that K.D. was not held back a grade in school

while in her custody, and that all of her children always attended school properly. But she

also testified that neither of her biological children finished high school, and other record

evidence showed that K.D. had been held back one grade while in Sheila’s custody. The

State also asked Sheila whether she loved Applicant and whether she believed that

Applicant could have sexually assaulted K.D. Sheila responded that she loved Applicant

at one time, and that, to her knowledge, he could never do something like that. The State

repeatedly probed Sheila about how she could simultaneously believe that Applicant

could not have sexually assaulted K.D., but also not believe that K.D. was lying when she

accused Applicant of sexually assaulting her. Ultimately Sheila stated, “I don’t think it


       10
         The contents of the letter were excluded by the trial court, but it appears that the letter
described something sexual in nature.
                                                                                Harleston–39

happened, ma’am, no, I don’t.” But when the State followed up by asking, “So you think

[K.D.]’s a liar?” Sheila responded “I didn’t say she was a liar. I’m not going to say that.”




                                      VII. A NALYSIS

A. The evidence presented was newly discovered but not credible.

       The parties do not dispute that K.D.’s initial recantation took place when she wrote

her affidavit after Applicant had exhausted his appeals. Therefore, we agree with the

parties that Applicant’s evidence is newly discovered evidence for purposes of his

Herrera actual-innocence claim. Elizondo, 947 S.W.2d at 206 (requiring “newly

discovered” evidence to assert a Herrera actual-innocence claim); Tuley, 109 S.W.3d at

403 (discussing when evidence is newly discovered). However, after independently

reviewing the habeas record in this case, we cannot agree with, and do not adopt, the

habeas court’s findings that Sheila’s testimony at the evidentiary hearing was credible, or

that K.D.’s affidavit, videotaped deposition, and certain individual statements plucked

from the habeas record were credible but that others were not. We also do not adopt the

habeas court’s finding that K.D.’s trial testimony was not credible. Significant objective

evidence from the habeas record supports a finding that Sheila testified untruthfully at the

evidentiary hearing and that K.D.’s recantations and stories explaining why she recanted

were internally inconsistent, implausible, and portions of them factually impossible. The

stories that she told in various forms throughout the postconviction proceedings were also

contradicted by the testimony adduced at Applicant’s trial. For example, the genuineness
                                                                                      Harleston–40

of K.D.’s outcry was supported by a number of witnesses at trial, and those witnesses’s

testimony was, at best, only implicitly impeached by Applicant’s presentation of K.D.’s

several and inconsistent alleged recantations. Witnesses at trial also testified that Sheila

did not have a good relationship with K.D. and that she was jealous of K.D. because

Sheila believed that her mother gave more attention to K.D. than to her, Barbara’s natural

daughter. And although Sheila claimed that she was not jealous of K.D., other testimony

at trial and in the habeas record supported K.D.’s version of events at trial. Sheila testified

at trial that her relationship with K.D. began “deteriorating” as early as when Applicant

moved in with them. Moreover, Sheila testified on behalf of Applicant at the trial that she

did not believe K.D.11


       11
          We also note that there are other inconsistencies and unsupported assertions in the
habeas court’s findings of fact. For example, in the section of the habeas court’s findings of fact
and conclusions of law discussing the applicable standard of review for a Herrera claim, the
habeas court states that “[t]he Elizondo case is uniquely on point here as[ . . . ]both involved a
childhood accusation of sexual assault that was later recanted when the child became an adult.”
Although not technically listed as a finding of fact or conclusion of law, we feel it is necessary to
address this conclusion. A cursory review of the evidence in this case and this Court’s opinion in
Elizondo reveals that the facts of Elizondo are distinguishable on their face.
        In Elizondo, the applicant, who had been convicted of aggravated sexual assault, raised a
Herrera claim alleging that he was actually innocent of the crime because new evidence,
including a recantation by the complaining witness, proved his actual innocence. Elizondo, 947
S.W.2d at 204. In addressing the applicant’s claim, we explained that the only inculpatory
evidence in that case was “based solely upon the testimony of [the applicant’s] step-son” who
was one of the alleged victims. Id. at 209. And this was despite the fact that the jury heard two
hearsay reports of the step-son’s allegations from his step-mother and the police officer
dispatched to investigate the original complaint, and the jury saw a sexually explicit picture and a
sexually suggestive note drawn and written, respectively, by the victim. We reached this
conclusion, in part, because “the drawing nor the note actually intimated that the child had been
sexually abused or assaulted, either by applicant or by any other person.” Id. at 210. And we
further concluded that both the complainant and his brother, who did not testify at the trial,
alleged that the testimony given by the complainant thirteen years earlier at the applicant’s trial
was false. Id. Both children cited their natural father as the reason for the false allegations
                                                                                    Harleston–41

B. Applicant failed to prove his actual innocence by clear and convincing evidence.

       Having determined that Applicant presented new evidence and what that evidence

is, we now must weigh Applicant’s new, exculpatory evidence against the evidence

adduced at trial to determine whether Applicant has proven by clear and convincing

evidence that no rational jury would have convicted him in light of the new evidence.

       The sheer number of “back and forth,” inconsistent stories leads us to conclude

that Applicant cannot meet the minimum quantum of proof necessary to satisfy

Applicant’s “Herculean” burden to unquestionably establish his actual innocence by clear

and convincing evidence. Newly discovered evidence that merely “muddies the waters”

and only casts doubt on an applicant’s conviction, such as the multiple recantations and



because he “relentlessly manipulated and threatened them into making such allegations against
applicant to retaliate against their natural mother, his ex-wife, for marrying applicant years
before.” Id.
        Thus, although the child complainant in Elizondo made allegations of sexual assault and
recanted, he recanted only once and fully, and the complainant’s recantation was supported by his
brother’s consistent statement, based on personal knowledge, that the complainant’s trial
testimony was false. Further, at trial, the only other inculpatory evidence was the statements of
the complainant, introduced at trial through his step-mother and the investigating police officer.
Id. at 209. In the instant case, K.D. changed her story three times, and there was no other
individual to attest to the veracity of her several and different recantations. Moreover, in
Applicant’s trial, and unlike in Elizondo, the State called a number of witnesses who supported
the circumstances of K.D.’s sexual-assault outcry as genuine, and some of those witnesses were
experts in the area of child psychology and counseling and were trained to identify false sexual-
assault outcries. Moreover, Applicant has relied solely on the times that K.D. has recanted to
meet his burden to prove that he is actually innocent by clear and convincing evidence. However,
despite that the burden is on Applicant, he did not call any witness or proffer any evidence that
would cast doubt on the State’s expert witnesses at trial, other than possibly implicitly
challenging their testimony through the recantation of the complainant. Therefore, it was
erroneous to conclude that “[t]he Elizondo case is uniquely on point here” because, although both
cases involve claims of sexual assault made by children and that were later recanted, the
similarities largely end there.
                                                                                 Harleston–42

repudiations in this case, is insufficient to prevail in a free-standing actual-innocence

claim because that evidence does not affirmatively establish an applicant’s factual

innocence by clear and convincing evidence. See Elizondo, 947 S.W.2d at 209.

                                      VIII. Conclusion

          Although Applicant presented newly discovered evidence that, if true, would have

possibly established his actual innocence, because he has not shown that his newly

discovered evidence is credible, and because of the multiple recantations and

repudiations, he cannot prove by clear and convincing evidence that no rational jury

would have convicted him in light of the newly discovered evidence. Therefore, we deny

relief.

                                                          Hervey, J.

Delivered: May 14, 2014

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