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Click here for the full text of this decision FACTS:Authorities charged Mark Anthony Zapata with sexually assaulting each of his three daughters. Zapata pleaded guilty to one count of aggravated sexual assault of a child and was sentenced to 15 years of imprisonment. On the day of sentencing, Zapata moved to withdraw his plea, but the trial court denied the motion. Zapata also filed a motion for a new trial, but the trial court also denied that motion. On direct appeal, the 4th Court of Appeals held that under Texas Rule of Appellate Procedure 25.2(b)(3) it lacked jurisdiction to consider the merits of Zapata’s claims. Pursuant to the provisions of Texas Code of Criminal Procedure Art. 11.07, the clerk of the trial court transmitted to the CCA Mark Anthony Zapata’s application for writ of habeas corpus. In his writ, Zapata contended, inter alia, that his plea was involuntary, because at the time he entered it he was not aware that the complainants had recanted their accusations and would not have testified against him in a trial. Zapata learned of the recantations after the entry of the plea but before sentencing. He was unable to produce his daughters to testify at the sentencing hearing in support of his motion to withdraw his plea, because their mother drove up from Corpus Christi the night before the hearing and took his daughters away with her. The trial court held a hearing on Zapata’s writ of habeas corpus. At the hearing, Zapata testified that he misunderstood his attorney’s use of legal terminology at the time of the plea and believed incorrectly that he could withdraw his plea at any time before sentencing. He admitted to telling the probation officer who conducted the presentence investigation interview that he had committed various offenses against his daughters. Zapata, however, testified at the habeas hearing that he fabricated the admissions, because he believed that he would be more likely to obtain a more lenient sentence if he admitted guilt. Two of Zapata’s three daughters testified at the habeas hearing, and both testified that Zapata had never touched them inappropriately or had sex with them. They testified that they had accused Zapata of sexually abusing them, because they were angry at him for wanting to divorce their mother and that they had been misled during interviews with sexual assault investigators and prosecutors. Zapata’s third daughter, who had earlier recanted her accusations against Zapata, had planned to testify for the state at the habeas hearing. Zapata, however, filed a motion to exclude her testimony on the basis that she had been in the courtroom throughout the proceedings, in violation of the rule of sequestration. The third daughter did not testify for the state or for Zapata at the habeas hearing. HOLDING:The CCA granted Zapata’s petition for a writ of habeas corpus. The CCA noted that the trial court entered findings of fact and conclusions of law finding that the witnesses who testified for Zapata at the habeas hearing were credible and concluding that Zapata should be permitted to withdraw his plea. The CCA found that the habeas record supported the trial court’s findings. At the time of Zapata’s motion to withdraw his plea, he was unable to produce the recantation testimony of his daughters, through no fault of his own. In light of the new evidence presented at the habeas hearing, the CCA stated that “it appears that Applicant’s plea was not knowingly and voluntarily entered.” Thus, the CCA granted habeas relief and set aside the judgment in Cause No. 2001CR3607-W1 in the 290th Judicial District Court of Bexar County. The CCA also remanded Zapata to the custody of the Sheriff of Bexar County to answer the charge against him. OPINION:Per curiam. DISSENT:Hervey, J., filed a dissenting opinion, in which Keller, P.J., and Keasler, J., joined. “In this case, applicant has not carried his Herculean task of proving his innocence because a reasonable juror could still convict him based on the overwhelming evidence of applicant’s guilt even in light of . . . [one daughter's] recantation and the other so-called”exculpatory’ evidence. I would not grant applicant relief based on, as even applicant has put it, the”circus that was put together’ in this case.” Meyers, J. dissented without a written opinion.

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