Opinion
WR-93,813-01
01-11-2023
EX PARTE MICHAEL KEITH LUERA, JR., Applicant
Do not publish
On Application for a writ of Habeas Corpus Cause No. A-13,345-A in the 173RD District Court from Henderson County
OPINION
PER CURIAM.
Applicant pled guilty to indecency with a child and was placed on deferred-adjudication community supervision for eight years. His community supervision was subsequently revoked, and he was sentenced to four years' imprisonment. The Twelfth Court of Appeals affirmed his conviction. Luera v. State, No. 12-09-00101-CR (Tex. App. - Tyler, Feb. 26, 2010). Applicant 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, supported by an affidavit from the complainant recanting her allegations against him. Based on the record and after a hearing during which the complainant testified and recanted her original statements, the trial court has determined that Applicant has established by clear and convincing evidence that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.
We agree. Relief is granted. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002). The judgment in cause number A-13,345 in the 173rd District Court of Henderson County is set aside, and Applicant is remanded to the custody of the Sheriff of Henderson County to answer the charges as set out in the information. The trial court shall issue any necessary bench warrant within ten days from the date of this Court's mandate.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
DISSENTING OPINION
Keller, P.J., filed a dissenting opinion in which Hervey, Yeary and Slaughter, JJ., joined.
The complainant has recanted, but in this case, that is simply not enough to meet the "Herculean" task of establishing actual innocence. In an interview with a sheriff's detective, Applicant said that, on two occasions, his clothed penis rubbed against the Complainant's "butt" while he bounced her on his lap and that he had sexual thoughts, with perhaps a small erection. That statement suggests a perpetrator partially admitting to, but seeking to minimize, his conduct, and a rational jury could take it as such. Combined with his guilty plea, that language would support a rational finding of guilt despite the recantation.
See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) ("Establishing a bare claim of actual innocence is a Herculean task.").
See In the Interest of D.D., 653 N.W.2d 359, 361-62 (Iowa 2002) (reciting that the investigated person "denied any sexual motivation for his conduct but admitted having a partial erection while in the bathtub with the girls" and finding this and other evidence to support a conclusion that there was no "serious or substantial doubt" that the child was in "imminent danger of being sexually abused by his father if he is not adjudicated a child in need of assistance"); State v. Thomas, 297 So.3d 966, 973 (La.App. 2020) (discussing expert testimony in the sexual abuse context regarding "partial admission by perpetrators"); Giles v. State, 760 N.E.2d 248, 249 (Ind. App. 2002) (confession to some improper contact with the complainant characterized as a "partial confession" to sexual misconduct with a minor).
Moreover, the State alleged in its motion to adjudicate guilt that Applicant was seen viewing online child pornography on a computer, and at the adjudication hearing there was testimony that supported the allegation. The trial court found this and one other allegation true and adjudicated Applicant's guilt.
In view of the entire record, Applicant has not shown "by clear and convincing evidence that no rational jury would convict him in light of the new evidence."
See Ex parte Elizondo, 947 S.W.2d 202, 210 (Tex. Crim. App. 1996) (stating the standard for showing actual innocence).
I respectfully dissent.