Opinion
WR-87,520-03
06-28-2023
EX PARTE TORRIANO WALPOOL, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W14-76467-J(C) IN THE CRIMINAL DISTRICT COURT No. 3 FROM DALLAS COUNTY
ORDER
Per curiam.
Applicant was convicted of sexual assault of a child and sentenced to thirty years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Walpool v. State, No. 05-16-00105-CR (Tex. App.-Dallas del. Feb. 27, 2017). Applicant, through habeas counsel, filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that he is actually innocent. In support, Applicant relies on the victim's recantation made five years after Applicant's conviction. The victim issued four recantation affidavits in total and testified at an evidentiary hearing. Following the hearing, the trial court found the victim's recantation to be credible and recommended that this Court grant Applicant actual- innocence relief from his conviction. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). The trial court's findings and recommendation, however, are not supported by the habeas and trial records.
First, the victim's four recantation affidavits are not credible because they are internally and externally contradictory to each other, her testimony at trial, and her testimony at the evidentiary hearing. Second, the evidentiary hearing testimony of Applicant's mother is not credible, contrary to the habeas court's finding, because according to several trial witnesses, the mother was not present to witness what she now claims to have witnessed. Third, the trial witnesses who had the most direct knowledge of the facts (other than the victim), namely, the victim's stepsister and stepmother, never changed their testimony and were not called to testify at the evidentiary hearing. Fourth, the victim's testimony at the evidentiary hearing was far more tentative as compared to her original trial testimony, such that her trial testimony appears much more credible and is factually supported by the other evidence presented at trial. Thus, after this Court's independent review of the habeas and trial records, this Court disagrees that the victim's recantation is credible and that Applicant has satisfied the demanding Elizondo standard. Habeas relief is denied.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.