Opinion
NO. WR-84,091-01
12-19-2018
EX PARTE STEVEN MARK CHANEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W87-95754-K(A) IN CRIMINAL DISTRICT COURT NO. 4 DALLAS COUNTY
NEWELL, J., filed a concurring opinion in which HERVEY, ALCALA and RICHARDSON, JJ., joined.
The Court thoroughly explains the applicable standard for actual innocence relief and properly applies that standard to the facts of the case. As I cannot improve upon it, I simply join the Court's opinion. I write separately to address the concerns expressed regarding how we evaluate claims of actual innocence.
It is inaccurate to characterize the standard of review for actual innocence as a mere legal sufficiency review. Simple deficiencies in the record regarding a single element of the offense suffice to meet that standard. Actual innocence review, however, is triggered by newly discovered evidence—that which was not known to the defendant at the time of trial and could not have been known through the exercise of due diligence. If an applicant can present such qualifying evidence, he must then show by clear and convincing evidence that despite the evidence of guilt—including a plea of guilt—no reasonable juror could have found the applicant guilty in light of this new evidence. Moreover, the applicant must also show that he did not commit any greater or lesser-included offenses. It is a Herculean task. If it were an easy standard to meet, the Court would grant actual innocence relief more often.
See Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002) ("An applicant claiming actual innocence is not claiming that the evidence at trial was insufficient to support the conviction."); see also Ex parte Mayhugh, 512 S.W.3d 285, 298 (Tex. Crim. App. 2016) (plurality op.) (noting that no one could ever be found actually innocent on habeas review if the original trial evidence was legally sufficient to support guilt).
See, e.g., Britain v. State, 412 S.W.3d 518, 520 (Tex. Crim. App 2013) (noting that under the legal sufficiency standard, "evidence may be legally insufficient when the record contains either no evidence of an essential element, merely a modicum of evidence of one element, or if it conclusively establishes a reasonable doubt") (citing Jackson v. Virginia, 443 U.S. 307, 320 (1979)).
Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) (noting that a habeas applicant must not only make a truly persuasive showing of innocence, he must also prove that the evidence he relies upon is "newly discovered").
Tuley, 109 S.W.3d at 390-91 (noting that a guilty plea does not foreclose actual innocence relief).
Ex parte Kussmaul, 548 S.W.3d 606, 641 (Tex. Crim. App. 2018) (holding that the term "actual innocence" applies only in circumstances in which an accused did not commit the charged offense or any greater or lesser offenses).
Brown, 205 S.W.3d at 545.
So I do not see a reason to reformulate our current standard given how exacting that standard already is. Rather, I am concerned that heightening the existing standard could be perceived as an end-run around our sister court's interpretation of the term "actual innocence." The Texas Supreme Court has held that a wrongfully convicted defendant is entitled to compensation even under a Schlup-type claim of actual innocence. This type of claim does not establish a claim for relief by itself, is proven under a lower standard than a substantive innocence claim, and is not entitled to the same degree of respect as a free-standing, or Herrera-type claim of actual innocence. And yet, the Texas Supreme Court has held that this type of innocence claim merits compensation just as a free-standing innocence claim does. Elevating the standard for a free-standing innocence claim seems contrary to the path chosen by our sister court, and, as our sister court explains, our Legislature.
In re Allen, 366 S.W.3d 696, 710 (Tex. 2012).
Id. at 704-05.
Id. at 710.
Id. at 707 (concluding that the Legislature intended that the legal term of art, "actual innocence," includes both free-standing innocence claims and innocence claims based upon Schlup v. Delo).
Further, I disagree that the ability to grant habeas corpus relief on non-innocence claims under less exacting standards obviates the need for actual innocence review. As we have observed, a declaration of actual innocence provides greater relief than merely granting a new trial because it helps restore the defendant's reputation. When the government has wrongfully convicted an innocent person, it is up to the government to make that person whole as best it can. Actual innocence review provides a necessary safety valve to do just that. Raising the standard from exacting to impossible would only damage the efficacy and credibility of the criminal justice system as a whole. I see no reason to look for a solution to a problem that does not exist.
Ex parte Reyes, 474 S.W.3d 677, 681 (Tex. Crim. App. 2015).
The Code of Criminal Procedure places a duty upon prosecutors, not to convict, but to see that justice is done. TEX. CODE CRIM. PROC., art. 2.01. That duty does not end upon conviction. The transparent and thorough way in which the prosecutors have handled Applicant's claims perfectly illustrates this point. --------
With these thoughts, I join the Court's opinion. Filed: December 19, 2018 Publish