I agree with the majority's conclusion that the applicant has unquestionably proven his innocence in compliance with Ex parte Elizondo, and is entitled to the relief sought. I write separately to respond to arguments made against this conclusion.

First, there is a procedural matter; the Court should not dismiss the application. The fact that the applicant was released on bond after this Court issued an opinion granting relief and pending the State's Motion for Rehearing does not change the applicant's status at the time the application was filed or when relief was granted. At the time this Court granted relief, the applicant was in custody. The time of filing and the time when relief is granted, are the relevant moments in time for purposes of considering whether an applicant is under restraint for the purposes of a writ application filed under Article 11.07.

The State argues that we are required to conduct an independent examination of the 1997 trial record because Elizondo requires it. First, this argument comes too late in a motion for rehearing after written opinion. If there were items that the State wanted this Court to review, it could have requested the convicting court to include them in the record, and if the convicting court denied its request, the State could have requested that we order the record from that court. The State seems to be repeating arguments made by the dissent on original submission. These arguments were considered, but rejected, by the majority. Nothing new is raised.

By way of explanation for its failure to request that the record be forwarded or to make any arguments disagreeing with the trial court's findings on original submission, the State says that we specifically asked the parties to address what effect the applicant's guilty plea had on his actual innocence claim. As a result, the State did not include arguments about the record. But any habeas practitioner should know that the Court of Criminal Appeals is the habeas court. Any application filed pursuant to Texas Code of Criminal Procedure Article 11.07 is returnable to this Court. We do not hold hearings and take testimony; the convicting court performs these functions and makes findings of fact and conclusions of law. The proceedings in this Court are not merely an appeal from the convicting court. And the litigants who practice before this Court rarely get to redo their arguments. After answering the legal question presented for review, our next step is to review the trial court's recommendation.

The place to respond to the applicant's factual allegations and legal claims was in the convicting court, which the State did. Besides a general denial, the State had little to say in response to the application. The State said, "While the evidence provided by Applicant certainly raises the possibility that Applicant may be innocent, the State is troubled by the fact that Applicant chose to plead guilty and signed a judicial confession admitting to sexually assaulting [the complainant] when she was twelve years old."

I disagree that this Court's failure to review the trial record from on original submission was incorrect. We have repeatedly held that although this Court has the ultimate power to decide matters of fact in habeas corpus proceedings, generally if the trial court's findings of fact are supported by the habeas record, they should be accepted by this Court. See Ex parte Brandley, 781 S.W.2d 886, 892 (Tex. Crim. App. 1989); Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989). In habeas cases, it is the habeas record that controls, although the trial record may be relevant to the habeas judge. No legitimate policy reason has been presented to persuade me that we should treat Elizondo claims differently.

The State has not identified any findings that it claims are erroneous, and during oral argument, the State repeatedly said that it did not contest the findings of the trial court and that the facts of this case are compelling.

As for the State's suggestion that the Court was cutting corners in its opinion on original submission, the better course for parties filing a motion for rehearing is to stick to persuasive arguments on the merits. Parties may disagree with the result in a certain case; they should do so respectfully, however.

The suggestion has also been made that the evidence presented along with the application is not newly discovered. The State claims in its motion for rehearing that it is not clear whether the evidence is new. It is important to note that, once again, this argument was not raised by the State on original submission. The State has had ample opportunity to make this argument in the convicting court and in this Court. ⁽¹⁾

Even on the merits the State must lose, however. The fact that there was some evidence at the time of the applicant's trial that could have been used to impeach the complainant, does not mean that her affidavit recanting her trial testimony is not new evidence that affirmatively demonstrates the applicant's innocence.

There was some evidence available at the time of trial that indicated that the complainant lied about her allegations. The complainant herself explained that she told her boyfriend that she had lied about the allegations. Also, the boyfriend testified outside the presence of the jury that the complainant told him that she had lied about the allegations. This evidence attacked the complainant's credibility; it was not affirmative evidence of innocence.

Now the applicant presents the complainant's affidavit that no sexual assault ever occurred. This is affirmative evidence of innocence. And, it is supported by the boyfriend's affidavit and the affidavit and testimony of the complainant's best friend. This is new evidence of innocence. The suggestion to the contrary is not persuasive.

Contrary to the State's assertion, this Court considered and weighed the applicant's guilty plea, not just in addressing the question of law presented, but also in determining whether the applicant had produced evidence that unquestionably established his innocence. Tuley, No. 74,364, slip op. at 13-14, 17 (Tex. Crim. App. Dec. 18, 2002).

I am troubled by the use of the term "perjurious guilty plea." It is true that the applicant's claim today contradicts his judicial confession and guilty plea. It is also true, however, that the complainant's testimony at trial contradicts the affidavit that was submitted along with the application. To the extent that the applicant's plea was false, the complainant's testimony was also. This characterization adds little to the discussion of the issues in this case.

The State contends that even though the complainant in this case has now sworn under oath that applicant did not commit any offense, applicant is not entitled to relief from his aggravated sexual assault conviction because he purportedly committed perjury in pleading guilty. Apparently the logic is: he may not be guilty of aggravated sexual assault, but he is guilty of perjury, so keep him in prison for aggravated sexual assault. This is curious logic. Normally our criminal justice system attempts to punish people for the specific crimes that they have committed. But here, instead of the maxim "make the punishment fit the crime," the argument is that we should "make the crime fit the punishment that has already been assessed." A person who has committed perjury may be convicted for perjury, but he should not be convicted of aggravated sexual assault because he committed perjury.

Moreover, I think it is colossal hypocrisy to exclaim, "we are shocked, positively shocked," that a person who has pleaded guilty pursuant to a negotiated plea bargain would never do so unless he were truly guilty and believed himself guilty. Who are we kidding? It is true that Mr. Tuley did sign and swear to a form stipulation that "the following facts [tracking the indictment allegations] are true and correct and constitute the evidence in this case." He, of course, did not design the form. It is certainly accurate to say that there was some evidence already admitted in the original trial that would support a finding that the indictment allegations were true.

It is also true that the trial judge asked the magic question: "Are you pleading guilty because you are in fact guilty and for no other reason?" and applicant responded: "Yes, ma'am." Does this make him a perjurer? A self-admitted liar?

Suppose Mr. Tuley had been given a dose of truth serum. Now, in response to the magic question, he responds:

Your Honor, I do not believe that I am guilty. In fact, I know that I am not guilty. However, the present jury is deadlocked. Some of those jurors may believe that I am not guilty, but others obviously differ. A different jury could conceivably find me guilty and sentence me to life in prison. That is a very serious risk to me. Furthermore, I do not have enough money to pay my lawyer for conducting a second trial. I am worried that I might have to go to jail just to be entitled to an appointed lawyer for a second trial. I have a job. I would lose my job if I had to go to jail for months waiting for a second trial. Quite frankly, I am out of money and out of time. I just want to go home. The State has made a very attractive offer of ten years deferred adjudication. This is an offer I cannot refuse, given the obvious risks I face if I continue to maintain my innocence and insist upon a second trial. So, even though I am innocent of this charge, I want to plead guilty because I am making a fully informed, free, voluntary and rational choice among the alternative courses of action available to me.

The trial judge, hearing this unusual response, is likely to say something along the lines of:

How can you expect me to accept your plea of guilty? This is a very serious offense and it carries a potential life sentence if you should violate the terms of your community service. How can you expect me to accept a guilty plea to the first degree offense of aggravated sexual assault of a child if you say you are not guilty, but you want to plead guilty anyway? And besides, I heard the same evidence that the jury heard and I am not fully persuaded that the evidence is sufficient to support a conviction beyond a reasonable doubt. I refuse to accept your guilty plea and we will set this case for another trial.

Mr. Tuley, then, is likely to say:

Judge, whose side are you on? Are you on my side? I just want to plead guilty. I didn't do it. I know that, but I also know that the prosecution has a child complainant who says that I did. I have a drug problem and a jury is likely to hold that against me, and, frankly, I look dishonest. Nobody is going to believe me. Now, do me a favor and let me plead guilty and get my ten years deferred. This is a good deal. I want to take it. Don't stand in my way.

But an honorable trial judge might reasonably respond:

But, if you're not guilty, I cannot take your guilty plea. I am worried about this man pleading guilty to something he is not guilty of. That is just wrong, and I can't allow that kind of an injustice to take place in my court.

Mr. Tuley's honest reaction might well be: "Don't be my friend. With friends like you, who needs enemies?" Instead, Mr. Tuley's lawyer would probably yank him off to the corner and after a certain whispering back and forth, Mr. Tuley will see the light He will now respond appropriately to the magic question: "Are you pleading guilty because you are guilty and for no other reason?" with the right answer: "Yes, ma'am."

Our system encourages plea bargains that are freely, intelligently, and voluntarily made. See North Carolina v. Alford, 400 U.S. 25, 31-32 (1970). Over 90% of all criminal convictions are obtained through plea bargains. Surely we are not so naive as to believe that each and every one of these defendants is pleading guilty simply because he knows in his heart that he is guilty as sin and he wants to throw himself on the court's mercy, divinely oblivious to any punishment that he might receive. We long ago recognized that the single most important reason that a defendant pleads guilty is because he has an advantageous plea bargain with the State which he believes minimizes his risks. See Cruz v. State, 530 S.W.2d 817, 821-22 (Tex. Crim. App. 1975) (noting that defendants "commonly deny during an Art. 26.13 . . . inquiry that any promises have been made that induced a plea of guilty, when in fact the prosecutor has promised to recommend a certain sentence in exchange for the plea. The deceptive denial stems from the fear that the trial court will not accept the plea if the question is answered truthfully"). Were this not so, the Legislature would not have enacted a statute that explicitly permits a defendant charged with a felony to withdraw his guilty plea if the trial judge refuses to follow the plea agreement. See Tex. Code Crim. Proc. art. 26.13. If a defendant were pleading guilty solely because he is guilty and for no other reason, any plea bargain would be irrelevant to his decision, and thus it would be irrelevant that the trial judge refuses to follow it.

Our criminal justice system is amply protected by requiring that a guilty plea be freely, intelligently, and voluntarily entered and that there exist some evidence to support that plea. Alford, 400 U.S. at 31. "An individual accused of crime may voluntarily, knowingly, and understandingly consent to the imposition of a prison sentence even if he is unwilling or unable to admit his participation in the acts constituting the crime." Id. at 37. Neither logic nor law support a conclusion that, as a matter of law, a defendant who pleads guilty ipso facto commits perjury if he later asserts that he is, in fact, actually innocent and proves his innocence. This is especially important when, as here, the purported victim of the offense later testifies that, in truth, the defendant did not commit any offense at all. Our criminal justice system seeks to do justice. It is not justice to deny a guilty-plea-ing defendant any relief when his accuser later swears that the defendant is innocent and the trial judge believes that recantation is credible and consistent with the other evidence.

I am also troubled by the suggestion that the applicant's family might have been involved in putting pressure on the complainant to recant her allegations. In the absence of proof, and in a country where the principle that one is innocent until proven guilty is still the law of the land, unsupported speculations are inappropriate.

It surprises me that some still question whether the applicant has produced evidence that unquestionably establishes his innocence. Even without the recantation by the complainant, the State's case did not convince many. The convicting court was not persuaded by the State's evidence of guilt. Whatever spin is placed on the cold record today, the fact remains that the trial judge who heard the evidence at the trial and reviewed the evidence in the habeas proceedings concluded that the applicant had unquestionably established his innocence. Also, it is not as if the case at the trial was close. Ten of twelve jurors voted to acquit the applicant, even without the complainant's sworn recantation. This is compelling evidence that no reasonable jury hearing this new evidence would convict.

The evidence that is claimed to be the most damning is (1) the fact that the intimate relations between the applicant and the complainant's mother stopped at the same time the complainant alleged that the applicant began sexually assaulting her; and (2) the fact that the complainant testified that she did not have time to fabricate the details of her story because she did not plan to accuse the applicant until her mother asked her whether he had abused her.

First, there are plenty of reasons why intimate relations between two consenting adults may change or stop altogether. There are some suggestions in the record about why this may have occurred. The complainant's mother testified that the applicant was seeing other women during their relationship. Now that the complainant says that the applicant never sexually assaulted her, any persuasive force this might have had before no longer exists.

Second, there are large discrepancies in the record about how long the complainant, her mother, and aunt were together before the police arrived to interview the complainant.

To me, the most compelling evidence in this case is that the two people who really know what happened have agreed that it did not happen and that there is no independent affirmative evidence that a criminal offense even occurred. The trial judge who observed the trial found that the applicant produced new evidence that unquestionably proves his innocence. Nothing in the record contradicts those findings.

This case is not so much about what the applicant said, as it is about the trial judge's findings. The honorable, qualified, and experienced trial judge who presided over the applicant's trial and who reviewed the evidence presented in support of the application, after weighing all the evidence, found that the new evidence unquestionably established the applicant's innocence. These findings are supported by the habeas record, the record about which we are concerned in this case and all Elizondo cases. This case is a classic example of why we defer to the trial court's findings of fact in habeas cases.

As the Court said on original submission, "We are confident that the convicting courts of Texas can tell the difference between a meritorious claim of actual innocence accompanied by compelling new evidence and a bogus claim accompanied by bare allegations of innocence. Applicants may file applications, it does not mean that convicting courts will recommend granting relief." Tuley, No. 74,364, slip op. at 12. I still have faith in the trial judges of Texas and their ability to discern the difference between meritorious claims and bogus ones.

With these comments, I join the majority of the Court in denying the State's Motion for Rehearing.

Filed: July 2, 2003.

Publish.

1. The applicant notes in his response to the State's motion:

Though Applicant's writ application has been on file for approximately eighteen (18) months, the State has never made so much as a single mention even hinting that Applicant's evidence was not newly discovered. Thus, though the State filed an answer to Applicant's writ application, it appeared before the District Court at the evidentiary hearing, filed a brief in this Court, and argued before this Court, it has waited until its Motion for Rehearing to urge this point. Of perhaps greater significance though is the fact that the State assisted the trial court in preparing its Findings.