
 









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-79,196-01


EX PARTE ROBERT ALAN HARLESTON, JR., Applicant




ON APPLICATION FOR WRIT OF HABEAS CORPUS
IN CAUSE NO. 1205091-A IN THE 176TH DISTRICT COURT
HARRIS COUNTY


 Price, J., filed a concurring opinion in which Johnson, J., joined.

CONCURRING OPINION

 I disagree with the Court's assertion that the convicting court's recommended findings
with respect to the credibility of the victim's recantations "are not supported by the
record[.]" (1)  I cannot say that the record is absolutely devoid of any rational basis to accept
the convicting court's findings that the complaining witness's various recantations are more
credible than her recantations-of-her-recantations.  But I nevertheless agree that we need not
accept the convicting court's recommended findings of fact in this post-conviction
application for writ of habeas corpus.  Moreover, even if I thought we were bound to accept
the trial court's findings of fact, I do not regard them as dispositive of the question of
whether that applicant should obtain relief on a claim of actual innocence under Ex parte
Elizondo. (2)
I.
	I write separately, first of all, to reiterate my long-held position that, as the court of
return in such cases, we are not bound (as we would be in our capacity as an appellate court)
by the convicting court's findings of fact.  In the particular context of post-conviction
applications for writ of habeas corpus, 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. (3)  But
that deference is not boundless, and, as the Court aptly acknowledges today, we do not
simply "rubber stamp" the convicting court's recommended findings. (4)  Because we are the
court of return in felony post-conviction habeas corpus proceedings, (5) we are the "ultimate"
fact-finder, with the 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. (6)
	It seems quite evident to me that, even on the cold record before us, as developed at
length in the Court's opinion today, there are compelling reasons to doubt the credibility of
the complaining witness's recantations in this case.  Therefore, while  I cannot agree with the
Court's assertion that the convicting court's recommended findings with respect to the
credibility of the victim's recantations find no support in the record, (7) I do believe that, on
balance, the record before us presents a far more compelling case for rejecting the
complaining witness's recantations than for crediting them.  Because I think it is within the
Court's prerogative as the court of return to reject the convicting court's recommended
findings that the victim's recantations are credible, and because I agree that they are not
credible, I would simply reject them.
II.
	I write further to make a second--and more fundamental--point.  At least as pertains
to claims of actual innocence brought in post-conviction proceedings under Elizondo, it does
not ultimately matter whether the convicting court or even this Court happens to believe the
complaining witness's recantations.  That is not to say that the convicting court's
determination (as "original" fact-finder) and this Court's determination (as "ultimate" fact-finder) with respect to the credibility of the complaining witness's recantations are not
relevant to the disposition of the applicant's actual innocence claim.  But whether this Court
(or any other court) finds her recantations credible or incredible does not, by itself, dispose
of the claim.  Why?  Because, ultimately, the Elizondo standard does not ask whether this
Court finds the new evidence of innocence to be credible, reliable, or true.
	Instead, we are called upon to make a judgment with respect to what a reasonable
juror would have believed about the credibility or reliability or truth of the newly discovered
evidence.  What the applicant must show this Court, by clear and convincing evidence, is that
his new evidence so convincingly establishes his innocence "that no reasonable juror would
have convicted him" had it been able to add the new evidence to the mix of evidence it heard
at the applicant's trial. (8)  Although the convicting court, in its recommended findings of fact
and conclusions of law, initially recognized this as the appropriate standard, (9) it is not the
standard that the convicting court actually applied.  The convicting court inquired only 
whether it believed, by clear and convincing evidence, that the witness's various recantations
were more credible than her recantations-of-her-recantations; it never asked itself whether
it was also persuaded, by clear and convincing evidence, that no reasonable juror would
choose to disbelieve the recantations. (10)  Given the facts of this case as developed by the
habeas record and set out in the Court's opinion today, even if I shared the convicting court's
belief that the various recantations were true (which I do not), I would be unable to infer
from that belief that no reasonable juror, having heard both the evidence presented at trial
and the evidence developed at the post-conviction writ hearing, would fail to find the
recantations to be true and therefore convict the applicant.
	"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
allegations sought to be established." (11)  Here, the allegation sought to be established is not
that the complaining witness's recantations should be considered credible in the abstract. 
Rather, it 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 recantations. 
Those recantations must be so convincing and compelling that they produce in our minds the
firm belief or conviction that no reasonable juror, having heard the recantations, would have
relied upon the complaining witness's trial testimony to convict.  Given the circumstances
of this case as set out in the Court's opinion today--particularly that portion of the
complaining witness's initial testimony at the writ hearing that firmly recanted the
recantations in her affidavit and deposition, as well as the strong insinuation that she had
disowned her trial testimony simply to appease her "mother"--the complaining witness's
recantations do not serve to produce a firm belief or conviction in my mind that no
reasonable juror would have convicted the applicant.
	That being the case, regardless of whether the record actually supports the convicting
court's belief in the credibility of the complaining witness's recantations (in my view, it
does), and even assuming that we were to pay that belief the deference we ordinarily (if not
invariably) afford to a convicting court's recommended findings of fact in post-conviction
habeas corpus proceedings--indeed, even if I personally believed (which I do not) the
complaining witness's recantations to be genuine notwithstanding her recantations-of-her-recantations--I would still have to agree with the Court's ultimate conclusion that the
applicant is not entitled to relief under Elizondo.
	For these reasons, I concur in the Court's judgment but do not join the Court's
opinion.

FILED:	May 14, 2014
PUBLISH
1. 	 Majority Opinion at 2.
2. 	 947 S.W.2d 202 (Tex. Crim. App. 1996).
3. 	 E.g., Ex parte Reed, 271 S.W.3d 698, 727 (Tex. Crim. App. 2008).
4. 	 Majority Opinion at 6.
5. 	 See Tex. Code Crim. Proc. art. 11.07, § 3(a).  As I observed in Reed:

		Articles 11.07 and 11.071 of the Texas Code of Criminal Procedure make
post-conviction applications for writ of habeas corpus in felony (including capital)
cases, though filed in the convicting court,  returnable to this Court.  Because this
Court lacks the capacity to develop live testimony, it is a matter of convenience only
that such writs are filed in the convicting court in the first instance; original
jurisdiction to resolve the matter lies with this Court.  The convicting court's
statutorily contemplated findings of fact are no more than well-informed
recommendations.  And though there is rarely any good reason not to follow them
when they are supported by the evidence adduced in the convicting court, there is no
absolute requirement that we follow them, even if supported by the evidence, when
the evidence also supports a different finding that we have reason to deem more
justified by credible or reliable evidence, even on a cold record.

		I am not suggesting that it would be a good idea to reject record-supported
recommendations from the trial court on a regular basis (or even very often).  And
we plainly do not.  But it is a mistake to believe that we are prohibited from doing
so even in the rare case.  To deny our authority as a court of original jurisdiction is
to relegate our status to that of a reviewing court.  That would be an abdication of our
constitutionally and statutorily assigned authority and responsibility that I could not
possibly condone.

Reed, 271 S.W.3d at 754-55 (Price, J., concurring) (footnotes and citations omitted).
6. 	 Ex parte Butler, 416 S.W.3d 863, 879 n.6 (Tex. Crim. App. 2012) (Price, J., dissenting); 
Ex parte Spencer, 337 S.W.3d 869, 880 n.1 (Tex. Crim. App. 2011) (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).
7. 	 Majority Opinion at 2.
8. 	 "[T]hat 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.'"  Spencer, 337 S.W.3d at 881 (Price, J., concurring) (quoting Elizondo, 947
S.W.2d at 209).
9. 	 See Majority Opinion at 8 (quoting convicting court's findings of fact and conclusions of
law).
10. 	 Id. at 8-13.
11. 	 State v. Addington, 588 S.W.2d 569, 570 (Tex. 1979).
