The questions in this case are: (1) on original submission of this case, did this Court follow Elizondo, ⁽¹⁾ and (2) should applicant get relief under Elizondo?

The answer to the first question is "no." Elizondo is the law, or at least it was until this case. Elizondo provides the framework for evaluating actual innocence claims on habeas. On original submission, the Court plainly did not follow Elizondo. Elizondo requires this Court to weigh the exculpatory evidence against the evidence of guilt adduced at trial, in order to determine if the record supports the habeas court's recommendation. ⁽²⁾ That is what this Court did in Elizondo itself, and has done since then in Ex parte Franklin, ⁽³⁾ in which, incidentally, we denied relief after the habeas court recommended that relief be granted. The Court's infelicitous desertion of the Elizondo standard in order to grant applicant relief is both inexplicable and unnecessary.

A disturbing aspect of the concurring opinion on rehearing, further signalling the abandonment of Elizondo, is its statement that the trial record is unnecessary to a determination of actual innocence claims. The conclusion that no "policy" reason exists to treat Elizondo claims "differently" flatly contravenes the language of that case, which requires that, in evaluating actual innocence claims (as opposed to other kinds of habeas claims), the trial record be consulted. Contrary to statements in the concurring opinion on rehearing, the burden is always on the habeas petitioner to produce a record sufficient to support his claim. Petitioner did not do so on original submission, and so his application should have been denied. The concurring opinion blames the State for the failure to request that the record be forwarded to this Court. This is an unfounded shifting of the burden on habeas, and violates not only Elizondo, but also traditional habeas corpus principles.

But the record is now before us, and we can now weigh the exculpatory evidence against the evidence at trial in order to determine if the record supports the habeas court's recommendation. Unlike the other dissenting opinion on rehearing, I think that applicant's evidence qualifies as "newly discovered." Moreover, credibility decisions are up to the fact-finder, and in this case the habeas court believed the new evidence. I believe that, if it is assumed that Elizondo can apply to convictions resting upon a guilty plea, the record is sufficient to support the habeas court's recommendation. Under these circumstances, now that the record is before us, I would answer the second question "yes" and grant applicant relief.

I respectfully dissent.

KELLER, P.J.

Date filed: July 2, 2003

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1. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996).

2. Id. at 206.

3. 72 S.W.3d 671 (Tex. Crim. App. 2002).