Proving actual innocence in Texas by means of an 11.07 Writ of Habeas Corpus is extremely difficult. Judges on the Court of Criminal Appeals like to refer to the effort as a “Herculean Task” because the Applicant has to essentially refute the State’s original case with new evidence.
Families trying to decide on whether to hire habeas counsel and what amount of resources to spend need to understand the nature of the applicant’s burden and whether other potential grounds for relief should also be raised.
The Applicant’s burden
Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996) gives us the evidentiary framework. The phrase “in light of newly discovered evidence” is key to an “Elizondo” claim. The reviewing court has to take all the evidence the State used to convict the applicant during trial, and then weigh it against the newly-discovered evidence. Once the court has compared and contrasted the new evidence against the old evidence, it decides “the probable impact the new evidence would have had” on the jury if they’d heard it. If, after comparing the new evidence with the old, the State’s original case has been invalidated and “no reasonable juror would have convicted [the applicant],” and the applicant has established the new evidence by clear and convincing evidence, then he has met his burden of poof.
What is new evidence?
New evidence is a term of art. The actual phrase the courts uses is “newly discovered” because it has to be evidence that was not available by reasonable investigation prior to or during trial. So a witness who could have exonerated the applicant if she’d been called during trial is not newly-discovered evidence if she was available to testify during trial but no one bothered to call her. Changing scientific evidence also constitutes “new evidence” for purposes of an Elizondo actual innocence claim.
This leads to a strange result. If exonerating evidence was reasonably discoverable at the time of trial but the defense attorney did not use it, then the defendant is barred from raising an “Elizondo” claim. Instead, he must allege ineffective assistance of counsel.
Also important to point out: if the newly-discovered evidence is not strong enough to prove actual innocence, a defendant can still use it to argue either a “Brady” claim (the State withheld the evidence during trial) or a “false evidence” claim. Grounds based on these claims require only that the evidence proffered by the applicant be “material” – it doesn’t have to completely exonerate the applicant. For a full discussion of “false evidence” and “Brady,” click on this link.
What does “winning” on an Elizondo claim get you?
First, you get an explicit finding of actual innocence. If you prove your constitutional rights were violated due to the use of false evidence or ineffective assistance, all you get is a new trial. It’s up to the State to either pursue another guilty verdict or drop the charges. With an Elizondo actual innocence claim, the Court of Criminal Appeals will order the successful applicant back to the county of conviction to face the charges, but the court will also make an explicit innocence finding which for all practical purposes precludes the possibility of further prosecution.
(It should be noted that the typical “Elizondo” claim usually involves an agreement with the District Attorney.)
Second, you get the opportunity to receive compensation under Texas statute. There’s set amounts based on the years the person is incarcerated.
Client are often surprised to learn that winning a writ application by proving a mere constitutional violation only results in a new trial, rather than exoneration. But remember, a typical ground for relief is about getting a fair trial, not getting exonerated. The State usually can prosecute you again if it wants.
For a full discussion of the Elizondo claim, including some grumpy dissents from a couple of judges, you can read Ex parte Chaney 563 SW3d 239 (Tex. Crim. App. 2018).