            IN THE COURT OF CRIMINAL APPEALS
                        OF TEXAS
                                      NO. WR-79,286-01



                       EX PARTE FRANK NAVARIJO, Applicant



               ON APPLICATION FOR WRIT OF HABEAS CORPUS
           IN CAUSE NO. 98-CR-4635 IN THE 186TH DISTRICT COURT
                              BEXAR COUNTY

       P RICE, J., filed a concurring opinion.

                                 CONCURRING OPINION

       By design, the standard for proving actual innocence is unforgiving.1              Indeed,

demonstrating actual innocence in a post-conviction application for writ of habeas corpus is,




       1

        See Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (“[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.”); Ex parte Spencer, 337 S.W.3d 869, 881 (Tex. Crim. App.
2011) (Price, J., concurring) (“[W]hen we first recognized bare actual innocence as a cognizable,
stand-alone claim in post-conviction habeas corpus proceedings, we deliberately designed the
standard to be exceedingly rigorous.”).
                                                                                  Navarijo — 2


we have said, “a Herculean task.”2 In order to do so, “an applicant must produce new

evidence to demonstrate that he is ‘unquestionably innocent’; that is to say, the reviewing

court must be able to conclude, after factoring the new, exculpatory evidence in with the

inculpatory evidence introduced at trial, that the applicant has shown ‘by clear and

convincing evidence that no reasonable juror would have convicted him in light of the new

evidence.’”3 The convicting court has addressed this standard, finding that the complainant’s

recantation testimony was more credible than her trial testimony in this case, and

recommending that we conclude from this finding, “by clear and convincing evidence[,] that

no rational juror would convict the applicant in light of the new evidence[.]” 4 And, indeed,

there is ample evidence in the record to suggest that the complaining witness’s recantation

is sincere and genuine, and that she only testified against the applicant as she did at trial

because her grandmother, who entertained an inexplicable animus against the applicant, had

put her up to it. Nevertheless, like the Court, I would ultimately reject the convicting court’s

recommendation that we grant relief.

       I do not think this Court is bound by the convicting court’s determination that the

complaining witness’s recantation is more credible than her trial testimony, even if it is

       2

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

       Spencer, 337 S.W.3d at 881 (Price, J., concurring) (quoting Elizondo, 947 S.W.2d at 209).
       4

       Majority Opinion at 10-11.
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supported by the record. This Court is the court of return in the particular context of post-

conviction applications for writ of habeas corpus.5 It is true that the convicting court is the

“original” fact-finder (if only because this Court has no institutional capacity for factual

development), and we will ordinarily defer to that court’s findings of fact when they are

supported by the record.6 But that deference is by no means boundless. Because we are the

court of return in felony post-conviction habeas corpus proceedings, it is my position that we

are the “ultimate” fact-finder, with the absolute prerogative to reject the convicting court’s

recommendations—even if they are supported by the record—if we think another disposition

is manifestly better supported by the record.7

       Even accepting that the convicting court’s determination that the recantation is

credible finds support in the record, I do not think that the convicting court’s conclusion that

its own assessment of the credibility of the complaining witness’s recantation (or, for that

matter, our assessment) necessarily translates into clear and convincing evidence that no

reasonable juror would fail to find the recantation more credible than the complaining

witness’s trial testimony. It does not ultimately matter whether the convicting court—or even

       5

        TEX . CODE CRIM . PROC. art. 11.07 § 3(a).
       6

        Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
       7

        Ex parte Butler, 416 S.W.3d 863, 879 n.6 (Tex. Crim. App. 2012) (Price, J., dissenting);
Spencer, 337 S.W.3d at 880 n.1 (Price, J., concurring); Ex parte Robbins, 360 S.W.3d 446, 467 n.14
(Tex. Crim. App. 2011) (Price, J., concurring); Reed, 271 S.W.3d at 754-55 (Price, J., concurring).
                                                                                  Navarijo — 4


this Court—happens to believe the complaining witness’s recantation. By this I do not mean

to suggest that an objective evaluation of the credibility of the complaining witness’s

recantation is not relevant to the disposition of an applicant’s actual innocence claim. But

whether the convicting court or this Court should find a complaining witness’s recantation

credible or incredible does not, by itself, dispose of the claim. Why? Because, ultimately,

the Elizondo standard does not ask whether we find the new evidence of innocence to be

credible, reliable, or true. Instead, we are called upon to evaluate what a reasonable juror

would have believed about the credibility or reliability or truth of the newly discovered

evidence. Therefore, even accepting the convicting court’s assessment that the recantation

in this case is credible, and assuming as well that the question of whether any reasonable

juror would still have convicted the applicant in light of the complaining witness’s

recantation is a mixed question of law and fact that turns (at least in part) upon an objective

assessment of the credibility of the recantation itself, I do not believe we are bound by the

convicting court’s recommendation regarding what reasonable jurors would do.8 That

question is ultimately for this Court to decide.

       “Clear and convincing evidence is defined as that measure or degree of proof which

will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the


       8

        See Ex parte Thompson, 153 S.W.3d 416, 428 (Tex. Crim. App. 2005) (Cochran, J.,
concurring) (characterizing this Court’s review of “the ultimate legal question” of whether no
reasonable juror would convict the applicant claiming actual innocence as de novo).
                                                                                     Navarijo — 5


allegations sought to be established.”9 Here, the allegation sought to be established is not

that the complaining witness’s recantation is credible in the abstract. Rather, the allegation

sought to be established is that no reasonable juror would have convicted the applicant had

it heard, in addition to the complaining witness’s inculpatory trial testimony, her present

recantation. That recantation must be sufficiently convincing and compelling that it

produces in our minds the firm belief or conviction that no reasonable juror, having heard it,

would have persisted in relying upon the complaining witness’s trial testimony to convict.

That the convicting court chose to believe the complaining witness’s recantation in this case

certainly has some bearing on our resolution of this issue; but it does not necessarily compel

us to answer the dispositive question—“Would no reasonable juror convict?”—in the

applicant’s favor. While I think it is an agonizingly close question,10 given the circumstances

of this case as cataloged in the Court’s opinion (the medical testimony at trial strongly

tending to corroborate that an assault took place, the complaining witness’s acknowledgment

at the writ hearing that nobody else sexually assaulted her,11 and the detailed nature of the

       9

        State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
       10

        The case for actual innocence here is certainly more compelling, for example, than it was
in Ex parte Harleston, ___ S.W.3d ___, No. WR-79,196-01, 2014 WL 1923231 (Tex. Crim. App.
May 14, 2014); id. (Price, J., concurring).
       11

       On cross-examination during the habeas hearing, the complaining witness explicitly testified:

              Q. You are here to say and you have said before that [the applicant] did not
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complainant’s trial testimony versus the haziness of her present-day memory), I cannot

ultimately say that the complaining witness’s recantation produces a firm belief or conviction

in my mind that no reasonable juror would have convicted the applicant had the present

recantation been added to the evidentiary mix at trial. I therefore reject the convicting court’s

recommendation that we should conclude otherwise.

       For these reasons, I concur in the Court’s judgment.




FILED:        June 18, 2014
PUBLISH




       molest you, correct?

              A. Correct.

              Q. Do you recall anyone else molesting you?

              A. No.

                Q. Do you recall anyone else being around you or any physical objects that
       I recall that back at trial was either -- that he penetrated you or it could have been
       with an object? Do you recall anyone using any objects or anything on you?

              A. No.
