           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

              M EYERS, J., filed a concurring and dissenting opinion, in which
              H ERVEY, 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
                                                                             Benavides–Page 2

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
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