Opinion
No. AP-76,264
Delivered: May 26, 2010. DO NOT PUBLISH.
On Application for a Writ of Habeas, Corpus Cause No. 2001CR0493-W1 in the 187th Judicial District Court from Bexar County.
KEASLER, J., announced the judgment of the Court and filed an opinion in which JOHNSON and COCHRAN, JJ., joined. MEYERS, J., filed a concurring and dissenting opinion in which HERVEY, J., joined. HOLCOMB, J., filed a dissenting opinion. KELLER, P.J., PRICE, and WOMACK, JJ., dissented.
OPINION
Jesse Benavides seeks habeas corpus relief, alleging that he is actually innocent of aggravated sexual assault based on the recantation of the victim, Irma Pennington. Contrary to the trial judge's findings, we find that Pennington's recantation is not credible. We also hold that the trial judge applied an improper, less-stringent standard of review when recommending to grant relief. We therefore deny habeas relief.
Background
In July of 1999, Pennington told Bexar County Sheriff's Office Detective Lorenz that Benavides sexually assaulted her in May of 1999. Pennington said that she went to pick up her van from the Performance Body Shop, but because she did not have the insurance money to pay for the repairs in hand, a woman at the shop would not release the van to her. The woman at the shop offered to have Benavides, a porter at the shop, drive Pennington home in her van to see if the insurance check arrived in the mail. Pennington recalled that Benavides was wearing a blue shirt with the name Jesse on it. Benavides drove Pennington the thirty miles to her house. When they arrived, he asked to use her phone, and Pennington allowed Benavides to come inside her house. Because Pennington had been disabled by a roll-over car accident in 1995, she had trouble walking and sat down on the couch next to Benavides while he used the phone. Benavides then held Pennington's arm as they looked around her house. The two returned to the couch, and Benavides started touching Pennington's chest and put his hand down her pants. She "didn't fight." Explaining this, Pennington told Detective Lorenz: I am a disabled ARMY [sic] nurse[,] and I remember always telling my patients and their family that women should not resist rape and the injuries would be minimal. It was very difficult to not do anything[,] but I didn't resist. The thing I didn't want to make him mad and the thing I said nicely was I don't feel very comfortable with the things that he was doing. He asked where the bed was[,] and he held my hand and took me to the bed that is next to the living room. He took my clothes off, he only unzipped his pants and brought them down a bit to about his knees and introduced his penis into my vagina and did not stay in very long. I do not know[] if he finished because I don't have sensation on my right side[,] even on the inside. Benavides left and took Pennington's van back to the shop. In July, Pennington returned to the shop and told the manager about the incident. The manager told Pennington that he could not do anything and advised her to call the police. In March of 2000, Pennington identified Benavides in a photo line-up as the individual who sexually assaulted her. At this time, Pennington clarified her understanding of Benavides's name: "After thinking about it[,] and how I came up with the name of Jesse FLACA [sic]. I remembered seeing the last name of FLACA [sic] on the shirt and him telling me that his first name was Jesse." Finally, Pennington stated that she wanted to "file charges" on Benavides "for what he did to" her. Benavides was charged with sexual assault in January 2001. On July 20, 2001, Pennington wrote a letter to the trial judge asking the judge to consider placing Benavides on probation. In September of 2001, the Department of Criminal Justice Community Justice Assistance Division prepared a presentence investigation (PSI) report for the trial judge. The supervision officer who prepared the report called Pennington, and Pennington said that she wanted Benavides to get probation and then hung up. Regarding the sexual assault allegation, Benavides told the supervision officer:I took her home. She was a nice lady. She was playing around with me making me laugh. We sat on the couch and whatever happened, happened. I didn't do intercourse with her. I might have played around with her, but that's it. It happened, it did happen. I'm sorry it happened. I regret it[,] and it will never happen again.In October of 2001, Benavides entered a plea of no contest to the charge. Pursuant to a plea agreement, the trial judge deferred adjudicated and placed Benavides on community supervision for seven years. The State filed a motion to adjudicate Benavides's guilt in November of 2006, alleging that Benavides violated two terms and conditions of his community supervision. In February of 2006, Benavides pled true to the State's allegations, and the trial judge adjudicated his guilt and sentenced him to twenty years' imprisonment. After Benavides was sentenced, in January of 2008, Pennington executed an affidavit stating that she was in the trial court when Benavides was adjudicated guilty and that she "DID NOT RECOGNIZE HIM AS THE PERSON THAT SEXUALLY ASSAULTED [HER]. . . ." Pennington hand-delivered the affidavit to Benavides's attorney.
Habeas Proceedings
In April of 2009, based on Pennington's affidavit, Benavides filed an application for a writ of habeas corpus claiming that he is actually innocent. The trial judge held a live evidentiary hearing in September of 2009. On direct examination by Benavides's attorney during the habeas hearing, Pennington testified that she had been the victim of a sexual assault. At the revocation hearing, Pennington approached Benavides's attorney and told him that she did not recognize Benavides as the man who assaulted her. She maintained that the face of the man who assaulted her is embedded in her mind and that she is certain that Benavides is not her assailant. On cross-examination by the State, Pennington registered some ambivalence about the statement she had given to the Sheriff's Department in 2000 in which she accused Benavides of sexual assault. She testified that she had been pressured because the detective had been "loud," that some of the initials or signatures on the statement were not hers, and that she did not recall some of things in the statement about the assault. She also noted that her address was incorrect and could not believe that she had signed the statement. Pennington then recalled the facts about the assault. She admitted that she had been assaulted by someone who worked for the body shop. With the mention of the body shop, Benavides's attorney invoked the rule regarding anyone in the courtroom who had worked at the shop and would be called to testify. Sandy Kowalick, the woman who directed Benavides to drive Pennington home on May 11, 1999, was ordered to leave the courtroom, after which Pennington continued to testify. Pennington stated that her assailant wore a blue uniform shirt with the name Flaca on it. The prosecutor also asked Pennington if the man who came inside her home to use the phone sexually assaulted her. In response, Pennington retracted her earlier allegation:A. You know, sexually assaulted, that's kind of — the severity, it's very —
Q. I can put it another way.
A. It's a word that doesn't fit, because I was not assaulted —
Q. Okay. Let me ask you this —
A. It was consensual, I guess you can say.
Q. Well, let me ask you this: Did the person who drove you home have sex with you on that day?
A. Yes.
Q. And did you invite that person, who drove you home that day, to have sex with you on that day? Did you say to him, "I want to have sex with you?"
(Witness Laughs)
A. I don't remember.Pennington then stated that she did not recall ever saying that she did not consent. When asked whether she had told prosecutor Kirsta Melton that she had said, "No," to Benavides, Pennington said that she had not, only that she told him that she was uncomfortable. Pennington asserted that sex had not been something that she wanted that day but that she had allowed it. Pennington stated that when dealing with sexual assault victims as an army nurse, she learned "never say no" because "more injuries occur." She stated that this was the reason she did not want to say "no" to Benavides or resist, possibly, but she did not specifically remember. Pennington continued to waver on the issue of consent when questioned by the State:
Q. Okay. So there's really no question, though, at this time that, again, somebody had sex with you on that day, May 11, 1999, and it was not with your consent?
. . .
A. No.
A. It was — those words are not proper, because I wouldn't say that it was not with my consent. It was with my consent.
Q. But you did not want — you did not want to be involved in that at the time; is that correct?
A. I don't think so.Pennington also wavered about her position on punishing Benavides:
Q. There seems to be a sense coming through from [your prior statements] that you did not want the person who sexually assaulted you on that day — May 11, 1999, to be punished. Is that accurate?
A. No.
Q. Okay. So, you are telling me today then that you did not want the person who sexually assaulted you to be punished?
A. No, I'm not saying everything.
. . .
Q. On another day, about a month later or two, did you go back to the body shop? Do you recall going back to the body shop to tell the manager something?
A. Yes.
Q. Okay. Can you tell us what it was that you went back to the body shop to tell the manager?
A. I was just mentioning that I was sexually injured — that I had sex with the person who came out to the house.
Q. Okay. Now, did you — why did you feel the desire to go and tell the manager about the incident?
A. So the man will be fired.
. . .
A. And to have common sense to fire the man.
Q. Okay. Why do you think that common sense should lead to the conclusion that that man should be fired?
A. Because it was not somebody that trust — that they should place trust in him.The State called Kowalik to rebut Pennington's identification testimony. Kowalik stated that her manager directed her to have a porter drive Pennington home to get the insurance check for the repairs, which had been mailed directly to Pennington. Kowalik asked Benavides, who she knew by the nickname Flaca, to drive Pennington home. Kowalik described Benavides as a basic porter; he would clean cars and the shop and run errands. Kowalik said that Benavides was gone for an abnormal amount of time when he drove Pennington home. She tried to contact him on the radio but could not reach him. The State also called Assistant Criminal District Attorney Kirsta Melton to testify about her investigation and prosecution of the case. After reviewing the notes from her interview with Pennington, Melton testified that Pennington had told her that she told Benavides "no" three times in response to his sexual advances. Pennington never told her that the encounter was consensual. Pennington had also been certain about her identification of Benavides, and Pennington never gave any indication that she was pressured to pick someone in the lineup. At the end of the hearing, the trial judge indicated that he had some difficulty grasping the standard of review for bare actual innocence claims, but he nevertheless concluded that Benavides was entitled to relief. Consequently, he later entered findings of fact and conclusions of law recommending that Benavides's conviction be set aside. Summarizing his impression of the testimony at the hearing the trial judge found, among other things:
• "that [Pennington] said several different things."
• "[the sum of Pennington's] testimony [was] that — it wasn't him, and even if it was him, it was consensual."
• "that the evidence presented by the State through the testimony of the State's witnesses was impeachment evidence, impeaching the credibility of the complainant, not direct evidence of Applicant's guilt."
• "that there was direct evidence that the Applicant was in fact the person who drove Irma Pennington home from the body shop on May 11, 1999. Yet, there was no direct evidence presented at the writ hearing that the Applicant did in fact sexually assault Irma Pennington."
• "that there has never been any evidence presented at any stage of this case that Applicant intentionally or knowingly compelled said complainant to submit or participate by the use of physical force or violence."The trial judge listed the evidence supporting Benavides's guilt as follows:
• Pennington's statement to the Sheriff's Department.
• that Pennington identified Benavides in a line-up.
• that Benavides admitted something "happened" with Pennington in the PSI.The judge also listed the newly-discovered evidence supporting Benavides's innocence claim:
• Pennington's January 2008 affidavit stating that she did not recognize Benavides as her assailant.
• Pennington's testimony that she is "certain" Benavides was not the man that sexually assaulted her.
• that Pennington signed her initial, 2000 statement to the Sheriff's Department "under pressure."
• that Pennington did not recognize anyone in the line-up at first but identified Benavides after the detective urged her to "choose one."
• that the encounter was consensual, even though Pennington was uncomfortable with it.The trial judge then found that the newly discovered evidence that Pennington "consented and 'allowed' Applicant to engage in sexual activity with her even though it made her uncomfortable is more believable than the evidence supporting Applicant's guilt listed above." This, according to the judge, is consistent with Pennington's decision to wait two months to report the assault, Benavides's version of the events, and that the parties reached a plea-bargain agreement for deferred adjudication. The trial judge opined that he was "bothered greatly" by Benavides's failure to testify at the hearing and determined that the only thing to persuade him about Benavides's innocence was Pennington's testimony. The judge questioned Pennington's credibility about her inability to recognize Benavides as her assailant because of Kowalik's testimony that Benavides was the one to drive Pennington home. The judge found that Pennington "does not believe" that Benavides sexually assaulted her and that her statement that she was pressured by the detective in making her 2000 statement to be credible. The trial judge, in his conclusions of law, determined that he "has difficulty saying that the newly discovered evidence supporting guilt, unquestionably establishes Applicant's innocence." The judge then stated, However, there is arguably another standard set forth in Ex parte Brown that does not seem to carry the steep burden. In Ex parte Brown, the Court stated that 'to succeed in an actual innocence claim, the applicant must show by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence. When faced with that standard, this Court concludes that the newly discovered evidence does clearly and convincingly show, despite the evidence of guilt that supports the conviction that no reasonable juror would have found applicant guilty in light of the new evidence.
Law
The Due Process Clause to the United States Constitution bars the incarceration of an innocent person. A bare claim of actual innocence, based on newly discovered evidence, is cognizable on habeas, regardless of whether the applicant's conviction was the result of jury trial, guilty plea, or plea of nolo contendere. To establish a bare innocence claim, an applicant must prove "by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." An applicant must overcome the presumption that the conviction was obtained without error. When confronted with a bare actual-innocence claim, courts must "assess the probable impact of the newly available evidence upon the persuasiveness of the State's case as a whole . . . by weigh[ing] such exculpatory evidence against the evidence of guilt. . . ." Thus, taking into account the credibility of witnesses, courts must weigh the newly available evidence against the old inculpatory evidence to determine if the new evidence unquestionably establishes the applicant's innocence. As the original factfinder in habeas proceedings, we are not bound by a trial judge's findings, but in most circumstances, we will defer to a judge's findings when they are supported by the record. But[w]hen our independent review of the record reveals findings and conclusions that are unsupported by the record, we will, understandably, become skeptical as to the reliability of the findings and conclusions as a whole. In such cases, we will proceed cautiously with a view toward exercising our own judgment. And when we deem it necessary, we will enter alternative or contrary findings and conclusions that the record supports. Furthermore, when we determine that the trial judge's findings and conclusions that are supported by the record require clarification or supplementation, we may exercise our judgment and make findings and conclusions that the record supports and that are necessary to our independent review and ultimate disposition.
Analysis
In this case, we conclude that it is necessary to exercise our original factfinding authority with respect to the credibility of Pennington's testimony at the habeas hearing. The record does not support the trial judge's finding that Pennington's testimony about her sexual encounter with Benavides or the circumstances under which she made her 2000 statement to the Sheriff's Department are credible. Next, our review of the record from the hearing and the trial judge's conclusions of law reveals that the trial judge was somewhat confounded by our decision in Ex parte Brown. There is one standard for bare actual innocence habeas claims, and the trial judge erred in concluding that Ex parte Brown announced a second, less-stringent standard that would entitle Benavides to relief under the facts of this case. Turning to the trial judge's credibility finding about Pennington's testimony, we find his credibility determination under these circumstances to be unwarranted. On the state of the record, we are hard pressed to find her testimony credible. Initially, Benavides based his actual innocence claim on Pennington's inability to recognize Benavides as her assailant at the revocation hearing, approximately eight years after the assault occurred. At first, Pennington testified that she had indeed been sexually assaulted, but that Benavides was not the person who assaulted her. She also claimed that the detective pressured her to sign the 2000 accusing Benavides of sexually assaulting her and that she was told to pick someone out of the photo line-up. Pennington's position changed drastically when she became aware of Kowalik's presence in the courtroom. Inexplicably, after Benavides's attorney invoked the rule and Kowalik left the courtroom, Pennington asserted, for the first time, that the sexual encounter with Benavides was consensual, though her understanding of consensual is more or less mistaken. Pennington laughed on two occasions when directly challenged by the prosecutor on the issue of consent and then answered evasively by claiming that she could not remember. Additionally, Pennington wavered on the issue of consent, stating that she consented and also stating that she did not want to be involved in having sex with Benavides. Significantly, Pennington became evasive and contradictory throughout her testimony when she was questioned about her recollection of the assault, her interview with the Sheriff's Department, and her role in the prosecution of the case. As a result, we cannot conclude that her testimony on the issue of consent and the authenticity and accuracy of her 2000 signed statement to the Sheriff's Department is credible. Thus, although we are presented with only a cold-record, we cannot agree with the trial judge's determination that Pennington's testimony about Benavides is credible and believable. Next, we turn to the trial judge's confusion with the standard applicable to bare actual-innocence claims. In Brown, we explained the requirements of the bare-actual-innocence standard in two ways. First, citing our prior decisions in Ex parte Tuley and State ex. rel. Holmes v. Third Court of Appeals, we said that "an applicant must show 'by clear and convincing evidence, that despite the evidence of guilt that supports the conviction, no reasonable juror would could have found the applicant guilty in light of the new evidence.'" And then, in the next sentence, we stated, "This showing must overcome the presumption that the conviction is valid and it must unquestionably establish applicant's innocence." These two statements explain the one standard for bare-actual-innocence claims; they do not set out two, alternate and separate requirements. If an applicant does not unquestionably establish innocence, then the applicant has failed to prove that no reasonable juror could have found the applicant guilty in light of the new evidence, and vice-versa. While a guilty plea or plea of nolo contendere does not prevent an applicant from seeking habeas relief under our actual innocence jurisprudence, such a plea, along with the with any evidence entered, or stipulation to the evidence, supporting the plea, must be considered in weighing the old evidence against the new evidence. Benavides entered a knowing and voluntary plea of nolo contendere to the charge of sexual assault. Even though Benavides admitted only that he "played around" with Pennington and denied having sexual intercourse with her to the supervision officer responsible for compiling the PSI, as part of his plea, Benavides agreed that the facts alleged in the indictment charging sexual assault were true and correct. Benavides also agreed to allow the State to introduce documentary evidence supporting his guilt, which included Exhibit 1. Exhibit 1 contained the Sheriff Department's report detailing Pennington's allegation and the Department's investigation into the case. The narrative about the assault, as chronicled by the Sheriff's Department, is consistent with Pennington's signed statement in 2000. The dissent's alleged problem with the conflict between the charged offense and the evidence supporting it is without merit. The offense of sexual assault always involves submission and participation through violence. Consequently, the evidence presented in support of Benavides's actual innocence claim does not overcome his knowing and voluntary plea and the resulting presumptively valid conviction. Here, we agree with the trial judge's first inclination that the evidence presented on habeas does not unquestionably establish Benavides's innocence. Having been presented with a recantation that is not credible, we conclude that Benavides has not sustained his burden — the new evidence of innocence does not clearly and convincingly outweigh the old evidence supporting his conviction. Therefore, contrary to the trial judge's conclusion, Benavides has not shown by clear and convincing that no reasonable juror would have found him guilty.Conclusion
We hold that Benavides has failed to show that he is actually innocent of sexual assault by clear and convincing evidence. Therefore, we deny relief.I respectfully dissent. After reading the record carefully, I conclude that we should accept the trial court's recommendation to grant relief. The record supports the trial court's finding that Irma Pennington's habeas testimony was, in relevant part, "credible and believable" and "persuasive." The record also supports the trial court's conclusion that, in light of this newly discovered evidence, no reasonable juror could have convicted Jesse Benavides of the charge contained in the indictment. Allow me to review the basic facts, as they are reflected in the record. On March 22, 2000, Pennington gave a sworn statement to the Bexar County Sheriff's Office in which she claimed that Benavides "assaulted" her in her home on May 11, 1999. Penningon described the "assault," in relevant part, as follows: "He sat down next to me [on her couch] and he got really close and started touching my chest and putting his hand down my pants and I didn't fight. "I am [a] disabled Army nurse and I remember always telling my patients and their family [sic] that women should not resist rape and the injuries would be minimal. It was very difficult to not do anything but I didn't resist. "The thing [sic] I didn't want to make him mad and the thing I said nicely was I don't feel very comfortable with the things that he was doing. He asked where the bed was and he held my hand and took me to the bed that is next to the living room. He took my clothes off, he only unzipped his pants and brought them down a bit to about his knees and introduced his penis into my vagina and did not stay very long. I do not known [sic] if he finished because I don't have sensation on my right side even on the inside." (Some capitalization omitted.) On January 11, 2001, a Bexar County grand jury returned an indictment charging Benavides with sexual assault under Texas Penal Code § 22.011(a)(1)(A) and (b)(1). The indictment alleged that, on or about May 11, 1999, Benavides, without Pennington's consent, "intentionally and knowingly cause[d] the penetration" of her sexual organ with his sexual organ, and that he "intentionally and knowingly compelled [her] to submit and participate by the use of physical force and violence." Note that the indictment's allegation of "physical force and violence" on the part of Benavides does not comport with Pennington's sworn statement given to the Bexar County Sheriff's Office. On July 24, 2001, Benavides, pursuant to a very favorable plea bargain, pled "no contest" to the charge in the indictment. On that same date, Benavides signed a pre-printed form entitled "Waiver, Consent to Stipulation of Testimony," in which he conceded that "all of the acts alleged [in the indictment] are true." On October 1, 2001, the trial court, following the terms of the plea bargain, deferred a finding of Benavides' guilt and placed him on community supervision for a period of seven years. On November 6, 2006, the State filed a motion to revoke Benavides' community supervision and to proceed to an adjudication of his guilt. On February 6, 2007, the trial court revoked Benavides' community supervision, adjudged him guilty of sexual assault as charged in the indictment, and assessed his punishment at imprisonment for twenty years. On April 21, 2009, Benavides filed an application for writ of habeas corpus on the ground of "actual innocence." In his application, Benavides claimed that "when [he] and the complainant finally met [in court in 2007], she stated unequivocally that she had never seen him before." He argued further that "no reasonable juror could have convicted [him] where the complainant stated she had never seen [him] before in her life." Attached to Benavides' application was Pennington's affidavit, dated January 30, 2008, in which she stated: "I was present in court on December 19 and 20, 2007 and saw Jesse Benavides and nothing in him [sic] appeared recognizable. I did not recognize him as the person that assaulted me sexually in [sic] 11 May 1999." (Some capitalization omitted.) On September 29, 2009, the trial court held an evidentiary hearing on Benavides' application for habeas relief. At that hearing, Pennington testified, in relevant part, as follows:
Q: You were the victim of a sexual assault; is that correct?
A: Yes.
Q: The next time — the first time that I [Defense Counsel] saw you was when Mr. Benavides, who was on probation, he was in here being sentenced on a motion to revoke his probation about one year ago. Is that correct?
A: Yes, it's correct.
Texas Penal Code § 22.011(a)(1)(A) provides that "[a] person commits an offense if the person intentionally or knowingly causes the penetration of the anus or sexual organ of another person by any means, without that person's consent." Texas Penal Code § 22.011(b)(1) provides that "[a] sexual assault under Subsection (a)(1) is without the consent of the other person if the actor compels the other person to submit or participate by the use of physical force or violence."
The punishment range for sexual assault is two to twenty years in prison and a possible fine of up to $10,000.
I have found nothing in the record indicating that Benavides was in court on December 19 and 20, 2007. Perhaps Pennington was mistaken as to the date.
No one explained to Pennington the statutory definition of "sexual assault," and we do not know how she understood that term.
* * *
Q: All right. Thank you for that. And during that hearing you came to me and stated, quote, that you did not recognize Mr. Benavides as the man that assaulted you. Is that correct?
A: Yes.
* * *
Q: Is this the man, Mr. Benavides, that sexually assaulted you?
(Counsel pointing.)
A: No.
Q: Are you certain.
A: Yes.
* * *
Q: Is there any question in your mind, on May the 11th of 1999, did somebody, someone, anybody sexually assault you on that day?
A: Yes. And, unfortunately, yes, I had suffered a sexual assault earlier one year, so I wasn't sure — I was already traumatized.
Q: Okay. And so, the answer to my question —
A: Yes.
Q: — is yes, on May the 11th, 1999, you were sexually assaulted?
A: Yes.
Q: And did that sexual assault take place in your home?
A: Yes.
* * *
Q: And after the person [from the auto body shop] came inside your house with you — and I [the State] don't want to go into all the details of it — but did that person, the male with the name "Flaca" on the uniform who worked at the body shop, did that person sexually assault you on May the 11th of 1999?
A: You know, sexually assaulted, that's kind of — the severity, it's very —
Q: I can put it another way.
A: It's a word that doesn't fit, because I was not assaulted —
Q: Okay. Let me ask you this —
A: It was consensual, I guess you can say.
Q: Well, let me ask you this: Did the person who drove you home have sex with you on that day?
A: Yes.
Q: And did you invite that person, who drove you home that day, to have sex with you on that day? Did you say to him, "I want to have sex with you"?
(Witness laughs.)
A: I don't remember.
Q: Do you recall ever having made a statement that would indicate that you did not consent to having sex with him before?
A: No.
Q: You don't recall ever having made a statement —
A: Saying "no"? No.
Q: Okay. Did you tell anybody from law enforcement, a police officer, that somebody sexually assaulted you on that day?
A: I never used those words. I never said it was sexually assault — sexual assaulted. It's something that I never said.
Q: Okay. Do you recall telling anyone from law enforcement that the person who had sex with you on that day, that you told that person that you were uncomfortable with what they were doing?
A: Yes.
Q: Okay. Do you recall telling — do you recall having a meeting with another prosecutor from my office, a lady, okay, and her name was Kirsta Melton, do you remember that name?
A: Yes.
Q: Do you remember having a conversation with her about the sexually — the crime that happened to you on that day?
A: Yes.
Q: Okay. In that conversation with her, do you recall telling her that you told the person who had sex with you "no" at least three times?
(Witness laughs.)
A: No, I don't remember saying that. I never said — I don't think I ever said "no."
Q: Okay. Did you, on the day when somebody had sex with you at your house, okay, is that something that you wanted to happen that day?
A: Wanted? No.
Q: You did not want that person to have sex with you?
A: No, but I allowed him to.
Q: Okay.
A: And that's the thing, that's exactly what I told the person, that I didn't — that I said only one time that I was uncomfortable, but I never said "no."
* * *
Q: Before 1995, were you employed in some capacity?
A: Yes, I was a nurse in the Army.
Q: Okay, as a nurse in the Army, did you have occasion to meet victims of sexual assault?
A: Yes.
Q: Okay. And did those experiences teach you something about the experience of being sexually assaulted?
A: Yes. "Never say no."
Q: Okay. And why is that? Why is it that you formed the conclusion that a victim of sexual assault should never say "no"?
A: Because more injuries occur.
Q: Okay. And do you think that might be one reason why on May the 11th, 1999, you did not want to say "no" or resist more strongly?
A: It's possible, perhaps. I don't remember.
* * *
Q: Okay. So there's really no question, though, at this time that, again, somebody had sex with you on that day, May 11th, 1999, and it was not with your consent?
* * *
A: It was — those words are not proper, because I wouldn't say that it was not with my consent. It was with my consent.
* * *
Q: Okay. But, again, my question is, do you believe that your memory of what happened to you on May the 11th of 1999 was more clear in the months immediately following that day or do you believe that your memory of those events is more clear today?
A: The memory of those events, I think, is the same now as they were before.
Q: Okay. Mrs. Pennington, can you tell us how old you are today?
A: 57.
* * *
Q: Okay. Are you being — have you been threatened or promised, or anything, for your testimony?
A: No.
A second witness at the habeas hearing, Kirsta Melton, testified in part as follows:
Q: Ms. Melton, can you tell the court how you're employed?
A: I am an Assistant Criminal District Attorney.
* * *
Q: Okay. And were you the prosecutor assigned to [Benavides'] case?
A: I was.
* * *
Q: Okay. And did you — during the course of preparing for [the plea bargain hearing], did you have occasion to have an — to interview the victim in the case, a woman by the name of Irma Pennington?
A: Yes.
* * *
Q: And do you recall, after having an opportunity to review [your] notes, in your conversation with Ms. Pennington, did she tell you that someone had sexually assaulted her on May the 11th of 2001?
A: Yes.
Q: 1999, sorry.
A: Yeah, the date I don't recall. But, yes, when Ms. Pennington came in to visit me, we talked about the rape that occurred when she was driven home from the auto body shop by a man named Jesse Benavides, who she knew as "Flaca."
Q: Okay. And did she indicate to you that on that occasion — when that person began to make sexual advances towards her, that she told that person she was uncomfortable with that?
A: Yes.
Q: And you recall whether she told you that she also told that person "no" on a number of occasions?
A: At least three times.On October 26, 2009, the trial court entered into the record twenty-three pages of fact-findings and conclusions of law, and recommended that we grant the habeas relief requested, i.e., a judgment of acquittal. Among the trial court's fact-findings were the following:
(1) "[T]here has never been any evidence presented at any stage of this case that [Benavides] intentionally or knowingly compelled [Pennington] to submit or participate by the use of physical force or violence."
(2) "This Court does not believe that Irma Pennington was intentionally lying when she stated that she didn't recognize [Benavides] as the man who sexually assaulted her. However, this Court questions whether such testimony is credible in light of the other evidence that establishes that [Benavides] was in fact the man who drove [Pennington] home from the body shop on May 11, 1999."
(3) "Irma Pennington does not believe that [Benavides] sexually assaulted her."
(4) "Irma Pennington's testimony that she consented and 'allowed' [Benavides] to engage in sexual activity with her, even though it made her uncomfortable, [is] credible and believable."
(5) "[W]hat is persuasive to this Court . . . is Irma Pennington's testimony that what occurred between her and [Benavides], although making her uncomfortable, was 'consensual.'"
(6) "[T]his Court also believes that Irma Pennington meant 'consensual' in a way that would mean that [Benavides] would be found actually innocent of sexual assault."Among the trial court's conclusions of law was the following: "[T]his Court concludes that the newly discovered evidence does clearly and convincingly show . . . that no reasonable juror could have found [Benavides] guilty in light of the new evidence." To succeed in an "actual innocence" claim, an applicant must show by "clear and convincing evidence" that no reasonable juror would have convicted him in light of the newly discovered evidence. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex.Crim.App. 1996). When assessing an actual innocence claim, this Court must normally defer to the trial court's fact-findings, because the trial court could actually see and hear the witnesses and was, therefore, in the better position to assess the weight and credibility of the witnesses' testimony. Ex parte Van Alstyne, 239 S.W.3d 815, 817 (Tex.Crim.App. 2007). I am satisfied that Benavides has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of Pennington's habeas testimony. The indictment alleged that Benavides used "physical force and violence" to compel Pennington to submit to his sexual advances. It is not clear to me that the State ever had any evidence to prove the allegation of "physical force and violence," but, in any event, given Pennington's clear and direct testimony at the habeas hearing, which the trial court found persuasive, no reasonable juror could have found that Benavides used physical force and violence to compel Pennington to submit. Notably, nothing in the record suggests why Pennington, an adult woman of apparently sound mind, would testify as she did unless her testimony was the truth. I strongly suspect that the State has always known that it had an extremely weak case against Benavides. As I noted earlier, Pennington's March 22, 2000, statement to the Bexar County Sheriff's Office is inconsistent with the factual allegations in the indictment. Perhaps that is why the State agreed to such a favorable plea bargain for such a serious charge. Unlike the majority, I see no basis on which to reject the trial court's fact-findings. I do not see that Pennington's habeas testimony was "evasive" or "contradictory." Nor do I see that she "wavered on the issue of consent" or that her "position" on whether she was sexually assaulted "changed drastically" midway through her testimony. I think the most that can be said on this record is that, midway through her testimony, Pennington realized that "sexual assault" was an inaccurate term to apply to what happened between her and Benavides. We will never know exactly what happened between Pennington and Benavides on the day in question. But I do know that Benavides has shown to the requisite degree of certainty that, in light of this new evidence, no reasonable juror would have found that he forcefully and violently assaulted Pennington. I respectfully dissent.
CONCURRING AND DISSENTING OPINION The victim in this case, Pennington, delivered an affidavit to Applicant's attorney stating that she attended Applicant's revocation hearing and did not recognize Applicant as the person who assaulted her. This led Applicant to file the application for writ of habeas corpus that is before us, in which he claims actual innocence on the basis of identity. Pennington testified at the habeas hearing and again said that Applicant was not the man who sexually assaulted her. She also said, for the first time, that she consented to having sex with the person who drove her home from the auto shop. I can see how the majority would deny the application on the identity issue-there is credible evidence refuting Pennington's claim that she did not recognize Applicant, including testimony from Applicant's co-worker that Applicant is the one who drove Pennington home, that Pennington had picked Applicant from a photo lineup, that Applicant admitted he had taken Pennington home and "might have played around with her," and that her inability to recognize Applicant at the revocation hearing was many years after the alleged assault. The issue of consent, however, was not raised in the writ before us because Pennington's testimony that she consented did not occur until after the writ was filed. At the time of the writ hearing, Pennington's consent officially became newly discovered evidence. Therefore, Applicant is entitled to file a separate application raising the consent issue. Because consent was not raised in this application for writ of habeas corpus, the majority should not include this issue in the decision to deny the application. I concur with the denial of the current application on the identity issue that was raised, but I disagree with the majority's consideration of the consent issue since it is newly discovered evidence that has not yet been raised in an application for writ of habeas corpus.