









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. AP-74,955


EX PARTE JOHN MICHAEL HARVEY, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM TARRANT COUNTY



 Johnson, J., filed a dissenting opinion.


D I S S E N T I N G   O P I N I O N


	I have great misgivings about the recantation in this case.  The complainant made outcry in
1989 at age three.  She testified at appellant's trial in 1992 that appellant had abused her.  The
testimony of her mother on cross-examination at that trial indicated that the mother's written
statement, which exculpated appellant by inculpating unknown others, was written by appellant and
copied by the mother in her own handwriting.  The mother also admitted to not being able remember
significant events, such as an outcry, because she had been using illegal drugs.
	Complainant's testimony at the hearing in 2004 was in essence that 1) she didn't remember
being molested at age three, and 2) she did not remember what she testified to at age seven in 1992,
but whatever she had said, it was not true.  It appears that the complainant is recanting by saying that
if she does not remember it, it did not happen.  Further, having dreams about a large man with a
tattoo of an eagle on his buttock does not prove that she was molested by such a person nor disprove
that she was molested by appellant, just as the belief by a city child that there is a bear under the bed
does not prove that it is, or was ever, there. 
	I do not believe that the testimony presented at the hearing in 2004 "unquestionably
establishes" appellant's innocence.  I respectfully dissent.
								Johnson, J.
En banc
Filed: December 8, 2004
Do not publish

 
