            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                    NO. WR-64,017-05



          EX PARTE CHRISTOPHER EUGENE WIMBERLY, Applicant



             ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 54,705-E IN THE 27TH DISTRICT COURT
                          FROM BELL COUNTY

       YEARY, J., filed a concurring opinion.

                                CONCURRING OPINION

       I agree that this applicant has not satisfied the Elizondo standard, which would entitle

him under our jurisprudence to habeas corpus relief in the form of a new trial. Ex parte

Elizondo, 947 S.W.2d 202, 209-10 (Tex. Crim. App. 1996). I therefore concur in the Court’s

judgment in this cause, with one significant caveat. I continue to disagree with the Court’s

use of the term of “actual innocence” to describe the status of applicants who have merely

satisfied the Elizondo standard for obtaining post-conviction relief. See Ex parte Cacy, ___

S.W.3d ___, No. WR-85,420-01, 2016 WL 6471975 (Tex. Crim. App. Nov. 2, 2016) (Yeary,

J., concurring) (published).
                                                                                  Wimberly — 2

       In describing the Elizondo burden today, the Court declares that an applicant must

show, by clear and convincing evidence, that, adding his new exculpatory evidence to the

evidentiary mix, “no reasonable juror could have found [him] guilty in light of the new

evidence.” Majority Opinion at 17 (citing Ex parte Mayhugh, 512 S.W.3d 285, 295 (Tex.

Crim. App. 2016) (plurality opinion)).1 The Court then further describes this admittedly

“Herculean” standard as even more “Herculean” than it really is: it must “unquestionably

establish [the applicant’s] actual innocence by clear and convincing evidence.” Id. at 19

(emphasis added). The Court then conflates these two very distinct standards at the end of

its opinion, declaring that, because Applicant failed to demonstrate that no reasonable juror

would have convicted him, he has not unquestionably established his innocence. Id. at 24.2

       I will reiterate what I said in Cacy:

       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


       1
         Never mind that Elizondo itself asks whether a reasonable juror would have convicted the
applicant in light of the new evidence. 947 S.W.2d at 209. Somewhere along the way, the word
“would” from the original articulation of the standard in Elizondo was converted into the word
“could.” Mayhugh itself cites Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006), and
Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002), for its “could” formulation of the
standard. Brown cites only Tuley. But Tuley cites nothing at all—not even Elizondo itself—at the
point at which it converts “would” to “could.”
       2
           This time the Court does use the original Elizondo formulation of “would.”
                                                                             Wimberly — 3

       guilty. This is not the same as establishing that the applicant is manifestly
       innocent.

Cacy, 2016 WL 6471975, at *1. An applicant who has truly proven that he is “actually” or

“unquestionably” innocent has undoubtedly satisfied the Elizondo standard. But that does not

mean that every applicant who can satisfy the Elizondo standard has necessarily established

that he is “actually” or “unquestionably” innocent. For this reason, I would avoid the

innocence label altogether in this context—much less “unquestionable” innocence. Perhaps

a claim under the Elizondo standard would better be described as a “plea for the restoration

of the presumption of innocence.” Or, more simply, a claim for Elizondo relief.

       Because I agree that Applicant has not met his burden to establish that he is entitled

to relief on an Elizondo claim, I concur in the result.




FILED:   November 1, 2017
DO NOT PUBLISH
