Opinion
NO. WR-25,176-06
07-26-2023
EX PARTE Manasseh Adriel PHILIP, Applicant
Bruce Anton, Dallas, for Applicant.
Bruce Anton, Dallas, for Applicant.
ORDER
Per curiam.
In 1988, Applicant entered pleas of guilty and no contest to committing indecency with a child against his stepdaughter and aggravated sexual assault against his daughter, and he was found guilty. He now claims that recantations from his daughter, beginning when she was twenty-eight years old, show that he is actually innocent of sexually assaulting her when she was three-and-a-half years old. The habeas court concluded that Applicant has shown himself to be actually innocent and recommended granting relief. We disagree and deny relief.
The State has contested Applicant's claims. Included in the habeas record is the State's Supplemental Response. Based on the Response and the entirety of the record before us, we are persuaded that Applicant is not only not "actually innocent," but that he is not entitled to relief of any kind.
First, in response to a previous habeas application alleging ineffective assistance of counsel, Applicant's trial counsel (who has now died) swore that Applicant admitted to him that he was "guilty of the offenses charged" and that he "had a problem." The habeas court in that first application found the attorney's testimony to be true and correct.
Second, the daughter now says that she did not make a report to the police, and that her foster mother must have done it. But the police report is in the record, and it entirely refutes this testimony. It says:
Investigator Espinoza interviewed complainant on 4/27/88 at which time complainant stated her daddy put his pee in her. Complainant refers to penis as pee. Complainant stated her daddy, listed suspect plays with her favorite parts which are her vagina and her anus. Complainant stated several times and as long as she can remember her daddy has put his pee in her favorite parts and it hurt. Complainant stated her mother would be at work when this happened. Complainant indicated to investigator by pointing to her vagina and bottom where daddy put his mouth and licked her. Complainant stated suspect told her "Don't tell on me", but she did anyway. Complainant stated daddy did bad things to her and used to hurt her a lot.
Third, there are problems with the recantation evidence. An expert witness for the defense at the habeas hearing testified that the daughter has no motive to recant other than, essentially, to set things right. But in a letter to the federal judge during a federal proceeding, the daughter says that since she saw Applicant again when she was nine, they have built an "absolutely, amazing, relationship and bond," and that she yearns for him to be in her children's lives. So the daughter does have at least some incentive to fabricate the recantation. And statements the daughter made in the live habeas hearing conflict with earlier statements and undisputed evidence. Applicant's expert failed to satisfactorily account for the police reports or the daughter's letter, and some of the statements made by the expert are simply contrary to the evidence.
Fourth, Applicant is an admitted child molester. That would not by itself be enough to conclude that he molested his daughter, but when combined with the daughter's statements to the police and his confession to counsel, the evidence of guilt is strong.
Establishing actual innocence is a "Herculean task." Applicant has not met the Herculean burden of showing himself to be actually innocent, and the habeas court's findings that he has done so are not supported by the record. A habeas applicant asserting actual innocence "must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Applicant has not done so.
Ex parte Harleston , 431 S.W.3d 67, 70 (Tex. Crim. App. 2014).
Because this is a subsequent application, Applicant also has to show an exception to the general prohibition against subsequent applications. Tex. Code Crim Proc. art. 11.07, § 4. The habeas court concluded that a meritorious actual-innocence claim necessarily meets the innocence-gateway exception to the subsequent-application prohibition. See id. at § 4(a)(2). The habeas court relied on Ex parte Blue , 230 S.W.3d 151 (Tex. Crim. App. 2007), which indicated that an intellectual-disability claim in a death-penalty case would meet the "innocence of the death penalty" exception to the subsequent-application prohibition if a "clear and convincing" showing were made. But the habeas court also found that Applicant's claim falls under the exception for new facts. See Tex. Code Crim Proc. art. 11.07, § 4(a)(1). We need not decide whether Blue applies here. Though not free from doubt, Applicant's claim that he meets the new-facts exception has substantial force, and we will assume that he has met that exception for purposes of this order.
Ex parte Hicks , 640 S.W.3d 232, 233 (Tex. Crim. App. 2022) (quoting Ex parte Elizondo , 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) ).
A. The evidence of guilt is strong.
On April 27, 1988, Dallas police investigator Maria Espinosa interviewed Applicant's three-and-a-half-year-old daughter. Notes of the interview appear in a police report dated the next day. We quoted these notes earlier, which memorialize the daughter having said that Applicant engaged in various sexual acts with her on many occasions.
In a supplemental report on May 5, the investigator named the foster mother as the "reporting person" and the daughter as the "complainant." The supplemental report described the daughter as the person who "[c]an testify that the listed narrative is what happened to her" and "[t]hat suspect is her natural father." The supplemental report described the foster mother as being able to say that "complainant told her about the incident and she reported this to Child Welfare Dept." The supplemental report identified Investigator Espinosa as the person who "interviewed the complainant and reporting person and prepared this report and prosecution report for filing."
The statements by the daughter in the police reports constitute substantial evidence inculpating Applicant. The daughter used language appropriate for her age, she pointed to Applicant as the perpetrator, and she indicated that the sexual conduct perpetrated by him happened numerous times. The fact that the abuse happened numerous times suggests someone who had regular access to the child, such as a family member, rather than a neighbor or friend who had access to the child only one time.
In May 1993, Applicant filed his first application challenging the aggravated-sexual-assault conviction. In response to his ineffective-assistance claims, his trial attorney, Fred Tinsley, filed an affidavit. It is in this affidavit that the attorney recites Applicant's confession that he committed the offense.
B. At best, the recantation creates a conflict in the evidence that a reasonable jury could resolve against Applicant.
That brings us to the daughter's recantation. At best, the recantation creates a conflict in the evidence. At age three-and-a-half, the daughter accused Applicant of conduct that constituted aggravated sexual assault. Over twenty-four years later, she first came forward to say that Applicant did not molest her. Even if the daughter had no incentive to distort the facts and her present statements were consistent and not clearly at odds with undisputed evidence, a rational jury could believe that she no longer remembers what happened to her. At age three-and-a-half, she had recently experienced the events. She identified Applicant as the perpetrator several times in her interview with the police investigator. She described the conduct and said it happened numerous times. Over twenty-four years later, her memory has had a long time to dim, especially considering the very young age at which the events occurred. Most people do not remember most events occurring at age three-and-a-half. The strength of the daughter's accusations then, plus Applicant's confession to his own attorney, are more than sufficient for a reasonable jury to conclude that the daughter does not remember the events accurately.
C. There are serious problems with Applicant's new evidence.
But the daughter does have an incentive to protect applicant, and some of her statements are inconsistent with earlier statements and undisputed evidence. There are also problems with the expert testimony.
1. The daughter has a strong incentive to protect applicant.
In 1999, Applicant was deported because he had two felony convictions. Only one conviction would not have been enough to deport him. He subsequently reentered the United States illegally. The daughter first came forward with her recantation in connection with federal proceedings to convict Applicant for the unlawful reentry.
In a letter to the federal judge, the daughter asked the judge to show mercy. In addition to referring to the "amazing relationship" she had built with Applicant, the letter said:
I would fly down every summer to spend with him and during those visits our time would consist of him teaching me at every possible moment (which I didn't always appreciate) as well as the instilling of a huge compassion for humanity, primarily towards those less fortunate. He would take me along with him to work and I would watch him give quotes to clients based on their ability to pay, even if it would eventually hurt his company. I grew up learning nothing but kindness, integrity, and an unparalleled, honesty from the man I call dada. When I was to be married he made the 14 hour drive here to Colorado to walk me down the aisle. Having him there was honestly a dream come true. In my house we have a photo hanging on the wall and in it are my dada and I during the "father daughter dance". Almost every single time I look at that picture my eyes fill up with tears. I struggle to even put into words the emotions I felt sharing that (one of the absolute most special moments in a girl's life) with him. All I can say is I was beyond honored and proud. My second child ... was born mere months before my father was imprisoned again, so he has yet to meet his second granddaughter. My immense fear is of receiving that one, foreboding, phone call and hearing that my dad (someone I cannot live without) has passed away, in prison of all places. It would be my fault. I pray every day that this fear never comes true.... I yearn for my children to know this man, this amazing person who can teach them so much more than I, alone. Having him in our lives provides joy and happiness that no other person can replicate.
It is not an overstatement to characterize this letter as "gushing." If this letter is a true expression of her feelings about Applicant, it makes a mockery of the habeas expert testimony regarding her credibility, as we will discuss below.
2. Some of the daughter's recent statements are inconsistent with prior statements and with undisputed facts.
When asked in the live habeas hearing whether she recalled talking to any police officers about the sexual abuse, the daughter responded only, "I do remember being in a police station." The police report makes clear that she did in fact talk with a police investigator about the sexual abuse. When asked whether she recalled ever saying that her father was the one who abused her, the daughter responded, "No." But the police report makes clear that she did in fact allege that her "Daddy" sexually abused her. The daughter also testified that she "never told the police that [Applicant] placed his penis inside" her vagina when she was age three and that she did not recall ever saying, "Daddy did bad things to me and he used to hurt me when he placed his penis or hands" inside her. These answers directly conflict with the police report, and while the daughter has asserted that the foster mother was racist and lied about Applicant, this does not explain the police investigator's statements in the report about what the daughter told the investigator. Also, the daughter's denial that she talked at all about Applicant to the police appears to be inconsistent with her testimony at the federal sentencing proceeding that the foster mother coached her to talk about her father.
She answered "no" to the "never told" question, which under a very technical reading would mean that she did tell the police, but an ordinary speaker or listener would take the answer as agreeing that she "never told," which seems to be the clear intent of the question and answer, especially given the follow-up question and answer.
The daughter testified, "I believe she [the foster mother] tried to coach me into talking about things that my dad did."
The daughter also testified at the habeas hearing that she remembered only a one-time incident of sexual abuse at the house of a friend of the family:
I remember that we went to a friend of the family's house and I ended up spending the night there. I was in a twin bed and a really tall, skinny man was in the room who had a turban on his head. They were Indian. I remember him - I thought he peed on me.
This claim of only a single incident of sexual abuse conflicts with her statements in the police report that she was sexually abused numerous times. Even if one could, contrary to the clear language of the police report, speculate that the police investigator might have thought the daughter was talking about Applicant when she was in fact talking about someone else, this does not explain the allegation of numerous instances of sexual abuse. And as we have explained earlier, the allegation of numerous instances of abuse indicates someone with regular access to the child, not a family friend with whom she spent the night once.
And the daughter testified that she did not remember the name of the family friend who abused her but remembered only the wife's name, Tanisha. But the defense's expert on habeas—Dr. Alexandria Doyle—related the daughter naming the alleged abuser as "Sadita."
The daughter further testified at the habeas hearing that she did not know at the time Applicant was sent to prison that it was partly because of the allegation that he sexually assaulted her, but she said, "Once I was a little older, yes, that's what I was told." But a few lines of testimony later, after being reminded of the federal hearing, she said she first learned of the allegations in October 2012. At the federal hearing, she testified, "I have never until three weeks ago read the report of what my dad is convicted of." Twenty-four years later is considerably different from being "a little older."
At the live habeas hearing, the daughter was asked if, after October 2012, she was able to rebuild her relationship with her father. She responded, "Yeah. I mean, we had - we didn't have a terrible relationship before that. Following that, it definitely got a lot better." This conflicts with her letter to the federal judge that, since reconnecting with Applicant after age nine, they had an "amazing" relationship. "Not terrible" and "amazing" are very different things, and it is hard to see from her letter to the federal judge how things could get "a lot better" than "amazing."
Dr. Doyle painted an even more divergent picture. She testified that the daughter has "got pretty negative views of her father, so it's not like she desires more of a relationship with him." "Pretty negative views" and "not desiring a relationship" is practically the opposite of what the daughter described in her 2012 letter as "learning nothing but kindness, integrity, and an unparalleled, honesty" from the man, Applicant being "someone I cannot live without," and Applicant being someone whose presence "in our lives provides joy and happiness that no other person can replicate." Dr. Doyle also said, "She really doesn't want him around her kids," which contradicts the last of these statements and also contradicts the statement that "I yearn for my children to know this man, this amazing person who can teach them so much more than I, alone."
3. The expert testimony is problematic.
Dr. Doyle testified that there was no family pressure to recant the allegation, but if the daughter's letter to the federal judge is truthful about the "amazing" relationship she had with Applicant, then she did not need pressure to have an incentive to recant. Dr. Doyle testified that the daughter does not have a good relationship with her father and that she is merely trying to clear her conscience. But the letter's depiction of the "amazing" relationship with her father conflicts with that conclusion. Dr. Doyle testified, "It's hard to understand what motive she would have for changing this." But the letter provides plenty of motive. That letter conflicts with all the statements Dr. Doyle makes about the daughter's relationship with Applicant.
Also, to the extent that Dr. Doyle testified there were no outside forces creating pressure to recant, that opinion conflicts with the fact that Applicant was subject to incarceration for illegal reentry and is now in danger of being deported. Each of these events prompted the daughter to come forward with a recantation. Perhaps these events would not matter if the daughter did not care what happened to Applicant, but her letter shows that she does care.
Dr. Doyle acknowledged reviewing the letter but "didn't find it to be particularly helpful ... one way or another." That statement alone makes the expert's opinion about the daughter's credibility unworthy of belief. The contents of the letter cannot be harmonized with Dr. Doyle's testimony. Dr. Doyle needed to explain why she believed the daughter to be credible despite the existence of the letter, but when given an opportunity, she made no attempt to do so.
It is also notable that Dr. Doyle interviewed no one but the daughter and her mother and did not review the offense reports until the habeas hearing was recessed for her to do so. After reviewing the offense reports, Dr. Doyle pointed out that the daughter said the abuse happened while the mother was at work, but "her mother never worked" and in fact "was incapable of working." But in an affidavit executed on January 28, 2013, the mother said, "I had my daughter in foster care ... so that I could get a job and support us." That statement conflicts with Dr. Doyle's assessment that the mother was "incapable of working." Also, in her written "Psychological Evaluation Summary," Dr. Doyle said that the mother was not "a full time participant in the work force," which left open her working part-time, which would still be consistent with the three-year-old daughter's allegations. We also have no testimony from the mother about whether she was working then.
D. Crucial findings by the Habeas Court are not supported by the record.
In finding 31, the habeas court said, "The only evidence of Applicant's guilt came from the complainant's allegation." That was true at the time of trial (aside from Applicant's "no contest" plea) but is not true now, because Applicant's own attorney said that Applicant confessed to him. The habeas court does not mention this confession anywhere in its findings.
In finding 35, the habeas court found that the daughter "explained that she was sexually abused by a family friend when she was three years old" and that "[s]he reported this to her foster mother, who instead told the police that Applicant was the perpetrator." And in finding 36, the habeas court concludes that, "The complainant testified that when she repeated her outcry to the police, she was talking about the family friend, not Applicant." But the findings do not mention the fact that the daughter told the police that Applicant was the perpetrator, despite the police report clearly stating that fact. The habeas court does not say it disbelieved the police investigator's statement that the daughter said that "Daddy" committed these acts. Even if it had, such a finding would be problematic, as we will explain later. The problems with the habeas court's findings in this regard also apply to finding 39, which discusses the expert testimony on this matter.
In finding 44, the habeas court found that "Dr. Doyle further explained in her written report that there are ‘no other external forces that have prompted [the complainant],’ now an adult, ‘to recant the allegation,’ including pressure from family." But this testimony is contradicted by the record. The threat of incarceration in federal court in 2012 and the threat of deportation now constitute external forces prompting the daughter to recant. The daughter's letter to the federal court indicates that the daughter has an "amazing" relationship with Applicant, so she would not want Applicant to be imprisoned or deported.
In finding 46, the habeas court found that "Dr. Doyle ultimately concluded that the complainant's recantation credibly undermined her previous allegation against Applicant." But the record reveals serious problems with that testimony: the expert's unsatisfactory responses to the police report and to the daughter's letter to the federal judge.
All of these criticisms undermine the habeas court's findings 50, 51, and 56, which find the daughter credible in her recantation and cite the expert testimony as corroborating the credibility of the recantation. In finding 50, the habeas court says that the daughter provided an explanation for how the outcry arose: that she "believed that she was reporting abuse from someone else." In other words, the claim is that the daughter isn't really recanting at all, because she never accused Applicant to begin with. But that conclusion flies in the face of the police reports. Investigator Espinosa was clear that the daughter said that her father committed these acts against her. The conclusion is also in tension with the daughter's claim in her federal court testimony that she was "coached." An allegation that she was coached to say her father did it is an explanation for why she accused him. An allegation that she was actually accusing a family friend and the police misunderstood her is a claim that she never accused Applicant at all. The claims are incompatible. Also, the daughter's claim that the sexual abuse was a one-time incident that occurred when she spent the night with a family friend is at odds with her statements to the police that the sexual abuse happened numerous times.
In findings 52 through 55, the habeas court compares Applicant's case to other cases in which relief was granted. But the problems with the daughter's recantation in this case are not present in those other cases. Those cases involved accusations that were retracted. Here, the daughter now claims that she never actually accused Applicant, but that claim flies in the face of the police reports documenting those accusations. To believe that what the daughter is saying now is accurate requires disbelieving statements made by a police investigator about what the daughter told her. Investigator Espinosa was not called to testify at the habeas hearing. It is one thing to evaluate the credibility of the complainant, based on her testimony, in deciding whether she was truthful now or then. It is another matter entirely to try to evaluate the credibility of a third party—a police investigator—based solely on the complainant's testimony.
Also, the other cases do not involve a defendant's confession to his own trial attorney that he committed the crime. Applicant confessed that to his trial attorney, Fred Tinsley. The habeas findings nowhere mention this confession, much less attempt to explain it away.
For all of the reasons discussed, the habeas court's findings are not supported by the record, and Applicant has not met his Herculean burden of showing actual innocence. We deny relief.
Newell, J., dissented.