Ex parte Harleston

431 S.W.3d 67

Ex parte Robert Alan HARLESTON, Jr., Applicant.

No. WR–79196–01.

Court of Criminal Appeals of Texas.

May 14, 2014.

Danny K. Easterling, for Robert Alan Harleston, Jr.

Linda Garcia for the State.

OPINION

HERVEY, J., delivered the opinion of the Court in which KELLER, P.J., MEYERS, KEASLER, COCHRAN, and ALCALA, JJ., joined.

Applicant, Robert Harleston, Jr., is currently serving a twenty-five-year sentence for the aggravated sexual assault of a child. In this application for a writ of habeas corpus, Applicant claims that he is actually innocent based on the victim's alleged recantations. After conducting a live evidentiary hearing, the habeas court adopted findings of fact that the victim's recantations were credible and recommended that this Court grant relief.

After independently reviewing the record, we reject the habeas court's findings that the victim's recantations were credible because those findings are not supported by the record, and we hold that Applicant has failed to present clear and convincing evidence that unquestionably establishes his innocence. Therefore, we will deny relief.

I. Procedural history and background

In April 2007, the victim, K.D., spoke to a school counselor about a sexual matter unrelated to the charges against Applicant. During that conversation, the counselor asked K.D. about her sexual history. In response, K.D. revealed to the counselor that her first sexual experience was with Applicant on Thanksgiving night of 2004 when he “put his hands in between her legs and had put his penis inside of her.” ¹ K.D. was twelve years old at the time. The counselor immediately notified law enforcement, and following an investigation, Applicant was arrested and charged with aggravated sexual assault of a child, to which he pled not guilty. At trial, testimony was adduced that Applicant sexually assaulted K.D. again that same night in the living room and a third time on an unspecified day in his vehicle. Applicant was convicted by a jury of his peers and sentenced to twenty-five years' imprisonment after pleading true to an enhancement allegation.

On appeal, Applicant argued that he did not receive a proper jury trial because a juror allegedly slept through a portion of testimony. The court of appeals held that Applicant failed to preserve that complaint for appellate review. See Harleston v. State, No. 01–09–00481–CR, 2010 WL 2873590 (Tex.App.-Houston [1st Dist.] 2010, pet. ref'd) (mem.op.) (not designated for publication). Applicant then filed a petition for discretionary review, which this Court refused on January 12, 2011.

Just over a month after Applicant's petition for discretionary review was refused, K.D. hand wrote a nine-page affidavit allegedly recanting, for the first time, all of her allegations against Applicant. Applicant then filed an application for a writ of habeas corpus arguing that K.D.'s recantation proves by clear and convincing evidence that he is actually innocent of the aggravated sexual assault of K.D. The habeas judge, who was the same judge that presided over Applicant's trial, held a live evidentiary hearing at which two witnesses testified: K.D. and K.D.'s mother (Sheila). K.D.'s testimony was highly inconsistent because she recanted her allegations and repudiated those recantations multiple times.

The habeas court made findings of facts that certain exhibits and portions of K.D.'s testimony in which she recanted her trial testimony were credible and then recommended that we grant Applicant relief because K.D.'s credible recantation proves by clear and convincing evidence that Applicant is actually innocent of the crime for which he was convicted.

II. Discussion

To prevail in a freestanding claim of actual innocence, an applicant must prove “by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence.” Ex parte Brown, 205 S.W.3d 538, 545 (Tex.Crim.App.2006) (quoting Ex parte Tuley, 109 S.W.3d 388, 392 (Tex.Crim.App.2002)); see Ex parte Elizondo, 947 S.W.2d 202, 207 (Tex.Crim.App.1996). The burden placed upon the applicant to prevail in a freestanding-actual-innocence claim is a “Herculean task” because, once an applicant “has been afforded a fair trial and convicted of the offense for which he was charged, the presumption of innocence disappears[,]” and “in the eyes of the law, [the applicant] does not come before the Court as one who is ‘innocent,’ but ... as one who has been convicted by due process of law....” See Herrera v. Collins, 506 U.S. 390, 399–400, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993). “[W]hen [an applicant] has been tried before a jury of his peers, with the full panoply of protections that our Constitution affords criminal defendants, it is appropriate to apply an ‘extraordinarily high’ standard of review.” Elizondo, 947 S.W.2d at 208 (quoting Herrera, 506 U.S. at 404, 113 S.Ct. 853 (O'Connor, J., concurring) (internal quotation marks omitted) (citations omitted)). This is because an applicant alleging a Herrera claim is directly attacking the propriety of his conviction, although the applicant does not dispute that he received an error-free trial. Id. at 209 (“[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.”). As a result, an applicant alleging a Herrera claim must make “an exceedingly persuasive case that he is actually innocent.” Id. at 206.

When an applicant presents new exculpatory evidence under Article 11.07 of the Texas Code of Criminal Procedure alleging facts that, if true, prove his or her actual innocence, the habeas court may conduct a live evidentiary hearing and consider affidavits, depositions, interrogatories, and the judge's own personal recollection if the habeas judge was also the trial judge, as in this case. SeeTex.Code.Crim. Proc. art. 11.07, § 3(d); see also Brown, 205 S.W.3d at 546. If a live hearing is held, the habeas court should assess the credibility of any witnesses and other admitted evidence. But regardless of whether a hearing is held, and before the habeas court can make a proper recommendation to this Court, the court must assess the probable impact of the new evidence, and then weigh the newly discovered evidence against the old inculpatory evidence to determine whether the applicant has met the burden of proof necessary to unquestionably establish his innocence. Ex parte Franklin, 72 S.W.3d 671, 677–78 (Tex.Crim.App.2002) (quoting Elizondo, 947 S.W.2d at 206). The habeas court then memorializes its findings of fact and conclusions of law and recommends to this Court whether relief should be granted. Brown, 205 S.W.3d at 546.

When reviewing a habeas court's findings of fact and conclusions of law, we defer to those findings and conclusions if they are supported by the record. Id. We defer to findings supported by the record because the habeas court is the “original factfinder” and is in the best position to evaluate the credibility of testifying witnesses. Ex parte Reed, 271 S.W.3d 698, 727 (Tex.Crim.App.2008). However, our deference is not a rubber stamp, and we can invoke our authority as the ultimate fact finder to make contrary or alternative findings and conclusions “[w]hen our independentreview of the record reveals that the trial judge's findings and conclusions are not supported by the record....” Id. This authority extends, when necessary, to making findings contrary of the habeas court—despite the fact that a finding may be based on credibility. Id. at 727. “[F]actors other than demeanor and inflection go into the decision whether to believe a witness.” Anderson v. Bessemer City, 470 U.S. 564, 575, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). For example, “[d]ocuments or objective evidence may contradict the witness' story; or the story itself may be so internally inconsistent or implausible on its face that a reasonable factfinder would not credit it.” Id. Moreover, we have held that “when numerous, but not all, findings and conclusions are not supported by the record, the determination of the level of deference to be accorded to the findings and conclusions as a whole is to be made on a case-by-case basis.” Reed, 271 S.W.3d at 727.

III. Findings of fact and conclusions of law

In order to fully review the findings of fact and conclusions of law from the habeas court, we quote them in their entirety here:

This Court has now held an evidentiary hearing at which it heard the testimony of two witnesses. Having duly considered the Application and the exhibits thereto, together with the State's answer, the oral and documentary evidence presented at the evidentiary hearing, the trial court record, the briefs and arguments of the parties' counsel, and this Court's personal recollection as the trial judge in this cause, the Court now makes the following as [its] Findings of Fact and Conclusions of Law:

Statement of the Case and Procedural History

On 3/19/09, the jury convicted Applicant of Aggravated Sexual Assault of a Child, [K.D.], and this Court assessed punishment at 25 years TDC–ID. The conviction and sentence were affirmed on direct appeal in Harleston v. State, 01–09–0481–CR , Tex.App.Houston [1st District] on 7/22/10. The Texas Court of Criminal Appeals denied discretionary review on 1/12/11, CPD–1138–10.

On 4/5/11, Applicant, represented by Danny Easterling[,] filed an Application for Writ of Habeas Corpus alleging that he was innocent of the offense of Aggravated Sexual Assault of a Child. On 10/27/11 and 2/23/12 an evidentiary hearing was held. A record from this hearing at which two witnesses testified and exhibits were offered and admitted. The record from this hearing was transcribed and two witnesses testified and 3 exhibits were offered and admitted by the defense.

For the reasons set forth, this Honorable Court will recommend to the...