Ex parte Calderon

Applicant pled no contest to indecency with a child. He claims that newly discovered evidence establishes that he is actually innocent of this offense and that he falsely pled no contest at the request of his mother.*fn1 We filed and set this case to determine, among other things, whether applicant has established that he is actually innocent. The State concedes and the convicting court has consistently made findings that applicant is actually innocent, and this Court has decided to accept these findings.*fn2 It is necessary, however, for us to determine whether we should grant applicant habeas corpus relief and set aside his conviction because, over the course of four remands and two live hearings, the convicting court has made supported-by-the-record but contradictory findings on whether applicant’s actual-innocence claim is based on newly discovered or newly available evidence. See Ex parte Brown, 205 S.W.3d 538, 545 (Tex.Cr.App. 2006) (“Not only must the habeas applicant make a truly persuasive showing of innocence, he must also prove that the evidence he relies upon is ‘newly discovered’ or ‘newly available.’ The term ‘newly discovered evidence’ refers to evidence that was not known to the applicant at the time of trial and could not be known to him even with the exercise of due diligence.”).

We first set out the facts that are not in dispute. In November 2004, applicant was charged with aggravated sexual assault of his sister Elaine (born on May 18, 1987) and his other sister Janie (born on September 1, 1993). On July 5, 2005, pursuant to a plea bargain, applicant pled no contest to a reduced charge of indecency involving Janie. The convicting court deferred an adjudication of guilt and placed applicant on community supervision (“probation”) for seven years. On May 31, 2006, applicant was sentenced to ten years in prison after his probation was revoked because, among other things, he refused to admit in sex-offender therapy that he had molested Janie. On September 29, 2006, applicant filed a habeas corpus application in which he claimed, among other things, that he is actually innocent of the indecency offense involving Janie. This application was supported by Janie’s July 8, 2006, affidavit recanting her prior allegations that applicant committed this offense (“Janie’s July 8, 2006, recantation affidavit”).*fn3