









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-76,264


EX PARTE JESSE BENAVIDES, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM BEXAR COUNTY



 Meyers, J., filed a concurring and dissenting opinion, in which
Hervey, J., joined.

CONCURRING AND DISSENTING OPINION


	The victim in this case, Pennington, delivered an affidavit to Applicant's attorney
stating that she attended Applicant's revocation hearing and did not recognize Applicant
as the person who assaulted her.  This led Applicant to file the application for writ of
habeas corpus that is before us, in which he claims actual innocence on the basis of
identity.  Pennington testified at the habeas hearing and again said that Applicant was not
the man who sexually assaulted her.  She also said, for the first time, that she consented to
having sex with the person who drove her home from the auto shop.  
	I can see how the majority would deny the application on the identity issue-there is
credible evidence refuting Pennington's claim that she did not recognize Applicant,
including testimony from Applicant's co-worker that Applicant is the one who drove
Pennington home, that Pennington had picked Applicant from a photo lineup, that
Applicant admitted he had taken Pennington home and "might have played around with
her," and that her inability to recognize Applicant at the revocation hearing was many
years after the alleged assault.  
	The issue of consent, however, was not raised in the writ before us because
Pennington's testimony that she consented did not occur until after the writ was filed.  At
the time of the writ hearing, Pennington's consent officially became newly discovered
evidence.  Therefore, Applicant is entitled to file a separate application raising the
consent issue. 
	Because consent was not raised in this application for writ of habeas corpus, the
majority should not include this issue in the decision to deny the application.  I concur
with the denial of the current application on the identity issue that was raised, but I
disagree with the majority's consideration of the consent issue since it is newly
discovered evidence that has not yet been raised in an application for writ of habeas
corpus. 
								Meyers, J.

Filed: May 26, 2010
Do Not Publish
