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Click here for the full text of this decision FACTS:On July 26, 1998, when C.B. was 7 or 8 years old, she told her mother that applicant, C.B.’s great-uncle, had sexually molested her. An aunt of C.B. was present when C.B. described the sexual abuse to her mother. When both the mother and aunt confronted him, applicant said “he hadn’t done that.” Child Protective Services investigated the allegation. C.B.’s mother said that she did not call the police because “families stick together.” The mother also told a grand jury that applicant had molested her when she was a child. On March 21, 2000, applicant pled guilty to aggravated sexual assault of a child and was placed on 10 years of community supervision. The state filed a motion to adjudicate guilt in November 2001, alleging a new DWI offense as well as several technical violations. The trial court adjudicated guilt and sentenced applicant to 12 years of imprisonment on Feb. 27, 2002. Applicant timely filed a motion for new trial based on “newly discovered evidence” that he was not guilty of sexually molesting C.B. Appellant attached a recantation affidavit signed by C.B. and four other affidavits signed by himself and family members. At the hearing on the motion for new trial, the parties agreed that the trial judge could interview C.B. in chambers about her recantation. After that interview, the trial judge stated, “I do not believe the recantation of the child,” and he denied the motion for new trial. After two more years, applicant filed an application for a writ of habeas corpus, making the same claim of actual innocence and attaching the same affidavits. The Court of Criminal Appeals (CCA) remanded the case to the trial court to conduct a live evidentiary hearing. After hearing witnesses, the habeas judge entered findings of fact summarizing the pertinent dates, events and testimony. He did not make any finding concerning credibility of any of the witnesses but he did conclude that “the new evidence unquestionably establishes Applicant’s actual innocence of the aggravated sexual assault of C.B.” He recommended that the CCA grant relief. HOLDING:The CCA denied habeas corpus relief. The court stated that it recognizes “actual innocence” claims in which the person asserts a “bare claim of innocence” based solely on newly discovered evidence. Not only must a habeas applicant make a truly persuasive showing of innocence, the court stated, he must also prove that the evidence he relies upon is “newly discovered” or “newly available.” In sum, the CCA found nothing in the record that demonstrated 1. why the habeas judge believed or should have believed that applicant’s witnesses at the habeas hearing were credible and 2. how the testimony differed from the previous testimony at the motion for new trial such that it constitutes “newly discovered evidence” that was not available and could not have been discovered for that hearing. Although courts, the CCA stated, must carefully examine a credible claim of actual innocence, recantations in “She said, He said” sexual assault cases are not rare. Such post-conviction claims, the CCA stated, should not be accepted without close scrutiny nor, generally, without strong corroboration by independent evidence. The court stated that the habeas record in the case did not show that the applicant’s evidence was either newly discovered or that it unquestionably established his innocence. OPINION:Cochran, J., delivered the opinion of the court, in which Keller, P.J., and Meyers, Price, Womack, Johnson, Hervey and Holcomb, J.J., joined. CONCURRENCE:Keasler, J., concurred in the judgment without an opinion.

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