No. 05-03-01277-CR
Opinion issued November 18, 2003 DO NOT PUBLISH Tex.R.App.P. 47
On Appeal from the County Criminal Court No. 4, Dallas County, Texas, Trial Court Cause No. (W)M01-57185-E AFFIRMED
Before Justices WHITTINGTON, JAMES, and O'NEILL.
Opinion By Justice, TOM JAMES.
Okwuchi Daniel filed an application for writ of habeas corpus challenging her conviction for theft. Appellant asserted in the application that she is actually innocent of the charge. Following a hearing, the trial court denied appellant the relief she sought, and appellant appealed. For the reasons that follow, we affirm the trial court's order.
Facts
Appellant was charged by information with the misdemeanor offense of theft of property having a value of $500 or more but less than $1500. She pleaded not guilty to the charges and proceeded to trial before the court. The trial judge found appellant guilty, and assessed punishment at 180 days confinement in jail, probated for eleven months, and a $700 fine. Appellant was discharged from community supervision on January 2, 2003. ________On July 18, 2003, appellant filed the application for writ of habeas corpus raising an actual innocence claim. Appellant claims she is currently suffering collateral consequences of the conviction because she is subject to deportation. At the hearing on the writ, the trial court judge stated that he had reviewed the record of the testimony presented in the trial. At the trial, Steven James Harwell, the loss prevention manager for Foley's, testified that appellant and another woman were observed selecting merchandise on the second floor of the store. They took merchandise from the second floor to the first floor, and went to a cashier's stand where a male sales associate was working. The items were placed on the counter. The sales associate scanned from a ticket that was in his hand four to six times, ringing up $9.99 each time. The ticket did not come off any of the items placed on the counter. Harwell believed the total amount scanned was about $46; however, the actual value of the merchandise totaled $825. Appellant also made a purchase that was not part of the theft. The two women were apprehended and questioned about the theft. The woman with appellant wrote appellant a note that said, "Just tell them the truth so you don't have to go to jail." Appellant denied knowing the sales associate involved, but the other woman admitted knowing him. The woman with appellant also admitted to the theft. Kim Glover, a Foley's investigator, testified that she saw appellant and another person selecting clothes, then approach a sales associate. The two women stood at the register while the sales associate acted as if he was ringing up the merchandise. He rang up a sale of $86.50, but the true value of the merchandise was $825. Appellant and the other woman were apprehended after they left the store with the merchandise. Appellant carried a bag with clothing in it. Appellant testified that she had met Kee An, the woman with whom she went to Foley's, through a class at Richland College. Kee An asked appellant to go to the mall with her. Appellant held Kee An's wallet while Kee An put the clothes she was going to buy on the counter. Appellant then handed Kee An the wallet. Appellant did not pay attention to the cashier, whom she did not know, while he rang up the sale. Nor did appellant pay attention as Kee An paid for the merchandise. Kee An had run out of money, so appellant agreed to purchase some items for Kee An. Appellant took her own small wallet from her backpack. She first attempted to pay for the items with her Foley's card. However, the charge was not approved, so she paid with a Visa card instead. Appellant carried one bag containing items Kee An had purchased because Kee An had two other bags full of clothing. Appellant denied being involved in the theft of the merchandise. Only one witness testified at the habeas corpus hearing. Eric Joseph Holden, a polygraph examiner, testified as to his background and qualifications regarding the polygraph, as well as to the process involved in administering a polygraph examination. Holden testified that he administered a polygraph examination to appellant. Over the State's objection, Holden testified that the results of the exam showed appellant answered truthfully when she denied being involved in the theft of the merchandise in this case. Holden's results were confirmed in a "blind" reliability check by his partner Bill Parker. The results of the polygraph examination were admitted into evidence over the State's objection. At the conclusion of the hearing, the trial court denied appellant the relief she sought. Applicable Law
In reviewing a trial judge's decision to grant or deny relief on a writ of habeas corpus, we afford almost total deference to the judge's determination of the historical facts that are supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. Ex parte Peterson, No. 0201-02, 2003 WL 22300275, at *9 (Tex.Crim.App. Oct. 8, 2003) (per curiam); State v. Nkwocha, 31 S.W.3d 817, 820 (Tex.App.-Dallas 2000, no pet.). We afford the same amount of deference to the trial judge's rulings on "application of law to fact questions" if the resolution of those ultimate questions turn on an evaluation of credibility and demeanor. Ex parte Peterson, 2003 WL 22300275, at *9; Nkwocha, 31 S.W.3d at 820. However, if the resolution of those ultimate questions turn on an application of legal standards, we review the determination de novo. Ex parte Peterson, 2003 WL 22300275, at *9; Nkwocha, 31 S.W.3d at 820. Absent a clear abuse of discretion, we accept the trial court's's decision whether to grant the relief requested in the habeas corpus petition. Ex parte Peterson, 2003 WL 22300275, at *9; Nkwocha, 31 S.W.3d at 820. Claims of actual innocence are categorized as either Herrera-type claims or Schlup-type claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A Herrera-type claim involves a substantive claim in which the applicant asserts her bare innocence based solely on newly discovered evidence. Ex parte Franklin, 72 S.W.3d 671, 675 (Tex.Crim.App. 2002) (citing Schlup, 513 U.S. at 314). A Schlup-type claim is a procedural claim in which the applicant's claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at trial. Ex parte Franklin, 72 S.W.3d at 675 (citing Schlup, 513 U.S. at 314). Appellant does not raise any procedural claims attacking the constitutionality of her conviction. Rather, she claims newly discovered evidence shows she is actually innocent of the offense for which she was convicted. Therefore, she is raising a Herrera-type claim. See Ex parte Franklin, 72 S.W.3d at 677. A conviction that results from a constitutionally error-free trial is entitled to the greatest respect. Ex parte Franklin, 72 S.W.3d at 677-78. Therefore, an applicant asserting a Herrera-type claim based on newly discovered evidence must show by clear and convincing evidence that no reasonable fact finder would have convicted her in light of the newly discovered evidence. Ex parte Franklin, 72 S.W.3d at 677; Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex.Crim.App. 1996). To meet this burden, the applicant must present evidence that constitutes affirmative evidence of her innocence. Ex parte Franklin, 72 S.W.3d at 678. The trial judge's job is not to review the fact finder's verdict, but to decide whether the newly discovered evidence would have convinced the fact finder of the applicant's innocence. See Ex parte Elizondo, 947 S.W.2d at 209; Nkwocha, 31 S.W.3d at 820. Analysis
Appellant relies upon the polygraph results to support her argument that no reasonable juror would have found her guilty of the offense. However, the results of polygraph examinations are not admissible in Texas Courts, regardless of whether they are offered by the State or the defense. See Tennard v. State, 802 S.W.2d 678, 683 (Tex.Crim.App. 1990) (per curiam); Castillo v. State, 739 S.W.2d 280, 293 (Tex.Crim.App. 1987). Therefore, the results of the polygraph examination would not be presented to a jury for consideration in determining appellant's guilt. See Tennard, 802 S.W.2d at 683; Castillo, 739 S.W.2d at 293; see also Nkwocha, 31 S.W.3d at 820-21 (one factor to consider is whether evidence is admissible). Moreover, throughout her trial, appellant denied her involvement in the theft scheme. The ability to obtain a polygraph was not unavailable to appellant at the time of her trial; thus it cannot be said the results showing she was truthful in her denial of guilt is newly discovered evidence. See Nkwocha, 31 S.W.3d at 820-21. Moreover, the results of the polygraph exam are merely corroborative of appellant's trial testimony and not dispositive of her claim of actual innocence. See Ex parte Franklin, 72 S.W.3d at 678; Nkwocha, 31 S.W.3d at 820-21. Having reviewed the record under the appropriate standard, we cannot say the trial court abused its discretion in denying appellant the relief sought by her application for writ of habeas corpus. Accordingly, we affirm the trial court's order.