Breach of confidence
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The tort of breach of confidence, is a common law tort that protects private information that is conveyed in confidence. A claim for breach of confidence typically requires the information to be of a confidential nature, which was communicated in confidence, and was disclosed to the detriment of the claimant.
Establishing breach of confidentiality depends on proving the existence and breach of a duty of confidentiality. Courts in the US look at the nature of the relationship between the parties. Most commonly, breach of confidentiality applies to the patient-physician relationship but it can also apply to relationships involving banks, hospitals, insurance companies.
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Sunday, November 25, 2007
Saturday, November 17, 2007
Texas court of Criminal appealsdid not take any action on this motion.......
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NUMBER 13-02-439-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI-EDINBURG
IN RE: JESSICA GARCIA
On Petition for Writ of Mandamus
O P I N I O N
Before Chief Justice Valdez and Justices Dorsey and Rodriguez
Opinion by Chief Justice Valdez
Relator, Jessica Garcia, has filed a petition for writ of mandamus complaining that the trial court abused its discretion in reinstating the lawsuit of the real party in interest, Virginia Carroll-Boyd. We conditionally grant relief.
Background
The trial court dismissed a personal injury case for want of prosecution. Thirteen days later, the plaintiff filed an unverified motion for new trial and to reinstate, alleging merely that:
The Plaintiff requests that her case be reinstated and that she be granted a new trial. The Plaintiff=s attorney was in Austin, Texas on February 22, 2002, and desires to proceed . . . .
The trial court did not take any action on this motion. One hundred and eight days after the order of dismissal was entered, the plaintiff=s attorney filed an affidavit stating that he Areceived no Notice of this case being placed on the Dismissal Docket or of the hearing scheduled for February 22, 2002 . . . .@ The affidavit provided that the attorney had moved his law office to Austin in October of 2001, and had notified the Nueces County District Clerk regarding his change of address. Thus, the attorney alleged that the cause was dismissed without proper notice, and that the plaintiff wished to pursue her case. The trial court granted the motion to reinstate and motion for new trial the day after this affidavit was filed. The defendants in this case have filed a petition for mandamus on grounds that the trial court acted without jurisdiction in granting the motion to reinstate and for a new trial.
Mandamus is Proper Remedy
If the trial court erroneously reinstates a case after it loses jurisdiction, the ruling can be challenged by mandamus. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994); see, e.g., City of McAllen v. Ramirez, 875 S.W.2d 702, 704 (Tex. App.BCorpus Christi 1994, orig. proceeding).
Analysis
A trial court has plenary power to reinstate a case within thirty days of dismissal for want of prosecution. Tex. R. Civ. P. 165(a)(3), (4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.BHouston [1st Dist.] 1995, no writ). A verified motion to reinstate filed within thirty days of dismissal extends plenary power for the same amount of time as would a motion for new trial. Tex. R. Civ. P. 165(a)(3), (4); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding).
In this case, the plaintiff=s motion to reinstate was not verified and did not include affidavits. An unverified motion is a nullity and does not extend the trial court=s plenary jurisdiction or the deadlines for perfecting an appeal. McConnell, 800 S.W.2d at 194. Therefore, the trial court=s plenary jurisdiction expired because the plaintiff did not file a verified motion within thirty days after the order of dismissal. Id. Accordingly, the trial court had no authority to grant the reinstatement motion after March 25, 2002, thirty days after the February 22, 2002, dismissal (the thirtieth day falls on a weekend).
We cannot consider the late-filed affidavit as an amended motion to reinstate because any amended motion was also required to be filed within thirty days of the date the dismissal order was signed. See Mandujano v. Oliva, 755 S.W.2d 512, 514 (Tex. App.BSan Antonio 1988, writ denied).
We cannot treat the plaintiff=s AMotion for a New Trial and to Reinstate@ as a motion for new trial, which is not required to be verified to extend plenary power. See Tex. R. Civ. P. 329(b) (no verification requirement for a motion for new trial). We cannot construe the motion to reinstate as one for a new trial even though it is labeled as such; rather, we look at the substance of the motion, which is one to reinstate. City of McAllen v. Ramirez, 875 S.W.2d 702, 704-05 (Tex. App.BCorpus Christi 1994, no writ) (a litigant may not circumvent the verification requirements of rule 165(a)(3) by labeling a motion for reinstatement as a motion for new trial); see State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding).
Therefore, the trial court=s jurisdiction expired thirty days after entry of the order of dismissal. Even if we were to somehow manage to construe the motion to reinstate as a motion for new trial, the trial court=s plenary jurisdiction had expired. The motion for reinstatement was overruled by operation of law because it was not decided within seventy-five days after the judgment was signed. Tex. R. Civ. P. 165(a)(3). The trial court had plenary power to reinstate the case until thirty days after any such timely filed motion was overruled. Id. May 8, 2002 was the seventy-fifth day after the order dismissing the case; June 7, 2002, was the thirtieth day after the motion to reinstate was overruled; and the reinstatement order was not entered until June 11, 2002.
Conclusion
We conclude that the trial court lacked jurisdiction to reinstate the case. We conditionally grant the petition for writ of mandamus. The writ will only issue if the trial court refuses to withdraw its order reinstating the case.
ROGELIO VALDEZ
Chief Justice
Publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed
this 12th day of December, 2002.
NUMBER 13-02-439-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI-EDINBURG
IN RE: JESSICA GARCIA
On Petition for Writ of Mandamus
O P I N I O N
Before Chief Justice Valdez and Justices Dorsey and Rodriguez
Opinion by Chief Justice Valdez
Relator, Jessica Garcia, has filed a petition for writ of mandamus complaining that the trial court abused its discretion in reinstating the lawsuit of the real party in interest, Virginia Carroll-Boyd. We conditionally grant relief.
Background
The trial court dismissed a personal injury case for want of prosecution. Thirteen days later, the plaintiff filed an unverified motion for new trial and to reinstate, alleging merely that:
The Plaintiff requests that her case be reinstated and that she be granted a new trial. The Plaintiff=s attorney was in Austin, Texas on February 22, 2002, and desires to proceed . . . .
The trial court did not take any action on this motion. One hundred and eight days after the order of dismissal was entered, the plaintiff=s attorney filed an affidavit stating that he Areceived no Notice of this case being placed on the Dismissal Docket or of the hearing scheduled for February 22, 2002 . . . .@ The affidavit provided that the attorney had moved his law office to Austin in October of 2001, and had notified the Nueces County District Clerk regarding his change of address. Thus, the attorney alleged that the cause was dismissed without proper notice, and that the plaintiff wished to pursue her case. The trial court granted the motion to reinstate and motion for new trial the day after this affidavit was filed. The defendants in this case have filed a petition for mandamus on grounds that the trial court acted without jurisdiction in granting the motion to reinstate and for a new trial.
Mandamus is Proper Remedy
If the trial court erroneously reinstates a case after it loses jurisdiction, the ruling can be challenged by mandamus. Estate of Howley v. Haberman, 878 S.W.2d 139, 140 (Tex. 1994); see, e.g., City of McAllen v. Ramirez, 875 S.W.2d 702, 704 (Tex. App.BCorpus Christi 1994, orig. proceeding).
Analysis
A trial court has plenary power to reinstate a case within thirty days of dismissal for want of prosecution. Tex. R. Civ. P. 165(a)(3), (4); Neese v. Wray, 893 S.W.2d 169, 170 (Tex. App.BHouston [1st Dist.] 1995, no writ). A verified motion to reinstate filed within thirty days of dismissal extends plenary power for the same amount of time as would a motion for new trial. Tex. R. Civ. P. 165(a)(3), (4); McConnell v. May, 800 S.W.2d 194, 194 (Tex. 1990) (orig. proceeding).
In this case, the plaintiff=s motion to reinstate was not verified and did not include affidavits. An unverified motion is a nullity and does not extend the trial court=s plenary jurisdiction or the deadlines for perfecting an appeal. McConnell, 800 S.W.2d at 194. Therefore, the trial court=s plenary jurisdiction expired because the plaintiff did not file a verified motion within thirty days after the order of dismissal. Id. Accordingly, the trial court had no authority to grant the reinstatement motion after March 25, 2002, thirty days after the February 22, 2002, dismissal (the thirtieth day falls on a weekend).
We cannot consider the late-filed affidavit as an amended motion to reinstate because any amended motion was also required to be filed within thirty days of the date the dismissal order was signed. See Mandujano v. Oliva, 755 S.W.2d 512, 514 (Tex. App.BSan Antonio 1988, writ denied).
We cannot treat the plaintiff=s AMotion for a New Trial and to Reinstate@ as a motion for new trial, which is not required to be verified to extend plenary power. See Tex. R. Civ. P. 329(b) (no verification requirement for a motion for new trial). We cannot construe the motion to reinstate as one for a new trial even though it is labeled as such; rather, we look at the substance of the motion, which is one to reinstate. City of McAllen v. Ramirez, 875 S.W.2d 702, 704-05 (Tex. App.BCorpus Christi 1994, no writ) (a litigant may not circumvent the verification requirements of rule 165(a)(3) by labeling a motion for reinstatement as a motion for new trial); see State Bar of Tex. v. Heard, 603 S.W.2d 829, 833 (Tex. 1980) (orig. proceeding).
Therefore, the trial court=s jurisdiction expired thirty days after entry of the order of dismissal. Even if we were to somehow manage to construe the motion to reinstate as a motion for new trial, the trial court=s plenary jurisdiction had expired. The motion for reinstatement was overruled by operation of law because it was not decided within seventy-five days after the judgment was signed. Tex. R. Civ. P. 165(a)(3). The trial court had plenary power to reinstate the case until thirty days after any such timely filed motion was overruled. Id. May 8, 2002 was the seventy-fifth day after the order dismissing the case; June 7, 2002, was the thirtieth day after the motion to reinstate was overruled; and the reinstatement order was not entered until June 11, 2002.
Conclusion
We conclude that the trial court lacked jurisdiction to reinstate the case. We conditionally grant the petition for writ of mandamus. The writ will only issue if the trial court refuses to withdraw its order reinstating the case.
ROGELIO VALDEZ
Chief Justice
Publish.
Tex. R. App. P. 47.3.
Opinion delivered and filed
this 12th day of December, 2002.
Wednesday, November 07, 2007
We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising
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NUMBER 13-05-00181-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
ESTANISLADO MORIN, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Hinojosa
The State appeals from the trial court's order granting appellee Estanislado Morin's application for writ of habeas corpus and granting a new trial. (1) In three issues, the State contends the trial court (1) used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim, (2) abused its discretion in granting his application for writ of habeas corpus based on newly-discovered evidence, and (3) failed to enter the habeas corpus order within the statutory time limit. We reverse and remand.
A. Factual & Procedural Background
A jury found appellee guilty of two counts of indecency with a child and assessed his punishment at five years' imprisonment and a $ 5,000 fine for each count. Because the jury recommended that the prison sentences and fines for both counts be suspended and that appellee be placed on community supervision, the trial court suspended the prison sentences and fines for both counts, and placed appellee on community supervision for five years for each count. (2) Subsequently, appellee was deported and complied with the terms of his community supervision by mail.
On October 10, 2003, appellee applied for a post-conviction writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, alleging (1) ineffective assistance of counsel and (2) newly-discovered evidence of innocence. In support of his newly-discovered evidence allegations, appellee attached an affidavit of the complaining witness, Veronica Salazar, (3) dated September 19, 2003, wherein she recanted her prior testimony. The State did not receive notice of the application until April 27, 2004, and filed a response on May 24, 2004. The State attached an affidavit, dated May 4, 2004, wherein Salazar recanted her September 19, 2003 recantation. The State also noted that appellee should have filed his post-conviction writ pursuant to article 11.072, instead of article 11.07. (4) See Tex. Code Crim. Proc. Ann. arts. 11.07, 11.072 (Vernon 2005).
On May 27, 2004, the trial court overruled appellee's claim of ineffective assistance of counsel and ordered a hearing on appellee's issue regarding the newly-discovered evidence of innocence. That hearing was held on June 29, 2004, and Salazar testified about her conflicting affidavits. The proceedings were then recessed to July 16, 2004, so that appellee, who was absent because of his deportation, could be present.
The hearing resumed on July 16, 2004, without appellee, who waived his presence. Both sides discussed the sixty-day statutory deadline at great length, and several times the State told the trial court that it would waive the sixty-day deadline, if it could be waived. Both sides mistakenly told the court when they thought the sixty-day deadline would elapse. Salazar testified again regarding her affidavits, explaining that she was pressured by family members to execute the September 19, 2003 affidavit, and her testimony at trial was truthful. After the hearing, the trial court said that before it ruled, it wanted additional memorandums from both sides. On October 22, 2004, the trial court ruled that Salazar's credibility was a question for a jury, and orally granted appellee a new trial. A written order reflecting this ruling was signed on March 4, 2005.
B. Standard of Review
In reviewing a district court's decision to grant a habeas corpus petition, we review the application of legal standards de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). We afford almost total deference to the trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). However, "if the record will not support the trial judge's conclusions, then this Court may make contrary findings." See Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989).
C. Discussion
In its third issue, the State contends the trial court erred by failing to enter its written order within the statutory deadline of sixty days. The State argues that because the order was not entered within the sixty-day period, the order is void and appellee's application was denied by operation of law. (5)
Article 11.072 of the code of criminal procedure provides that: "Not later than the 60th day after the day on which the State's answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application." Tex. Code Crim. Proc. Ann. art. 11.072. Because the State's answer to appellee's application was filed on May 24, 2004, the 60th day was July 23, 2004.
Habeas corpus petitions are to be heard without delay. See Tex. Const. art. I, § 12; Tex. Code Crim. Proc. Ann. art 11.07; Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000); McCree v. Hampton, 824 S.W.2d 578, 578-79 (Tex. Crim. App. 1992). The proper remedy to a trial court's delay in ruling on a habeas corpus petition under article 11.072 is to file for a petition for a writ of mandamus from this Court. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). After a trial court's ruling on a habeas corpus petition, compliance with statutory deadlines becomes moot. See McCree, 824 S.W.2d at 579; see also Ex parte Kendrick, No. 01-95-00161-CR, 1996 Tex. App. LEXIS 3400, *2 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (not designated for publication).
The record shows the trial court failed to rule on appellee's habeas corpus petition within the sixty days required by article 11.072. However, because the trial court ultimately ruled on the petition, we conclude that the timing issue is moot. (6) The State's third issue is overruled.
In its first issue, the State contends the trial court used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim. Claims of actual innocence fall into two categories: Herrera claims and Schlup claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A bare claim of actual innocence based solely on newly-discovered evidence is an Herrera claim, whereas a claim of actual innocence that is tied to a claim of constitutional error at trial is a Schlup claim. Schlup, 513 U.S. at 314. Because the Herrera and Schlup claims are different, they employ different burdens of proof. Id.
Because the verdict of a constitutional-error-free trial commands the greatest respect, the criminal justice system has a need for finality, and retrying stale cases that were originally tried years before imposes a heavy burden on the State, the burden of proof in Herrera claims is "extraordinarily high." See Herrera, 506 U.S. at 417; Davila v. State, 147 S.W.3d 572, 577-78 (Tex. App.-Corpus Christi 2004, pet. ref'd). To succeed in an Herrera claim, "the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
Appellee's first trial was found to be error-free by this Court in Morin v. State, No. 13-01-00001, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd) (not designated for publication). Furthermore, appellee's claim of innocence is unaccompanied by a claim of constitutional error and is therefore an Herrera claim. Accordingly, appellee must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Because the trial court ruled that "the proper forum to decide the credibility of a victim is the jury," we conclude it used the wrong legal standard. The State's first issue is sustained.
In light of our disposition of the State's first and third issues, it is unnecessary to address the State's second issue. See Tex. R. App. P. 47.1.
The trial court's order granting appellee's application for a writ of habeas corpus is reversed. The case is remanded to the trial court to timely determine whether appellee has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. (7)
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this the 17th day of August, 2006.
1.
See Tex. Code Crim. Proc. Ann. art. 44.01(k) (Vernon Supp. 2006) ("The state is entitled to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072.").
2.
This Court affirmed appellee's conviction on May 23, 2002. See Morin v. State, No. 13-01-001-CR, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd).
3. Appellee is Veronica Salazar's uncle by marriage to her mother's sister.
4. The record reflects that the parties agreed to proceed under article 11.072, and that relator did not need to refile.
5.
Because the State's third issue affects our ability to consider the State's remaining two issues, we will decide it first.
6.
We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising to waive it in any event, is now raising it as an issue on appeal.
7.
It would be improper for this Court to evaluate the merits of appellee's petition de novo because only the district court has the power to grant appellee's petition. See Tex. Code Crim. Proc. Ann. art 11.072 (Vernon 2005); see also Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (ordering remand of article 11.07 habeas petition to consider under correct standard).
NUMBER 13-05-00181-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
THE STATE OF TEXAS, Appellant,
v.
ESTANISLADO MORIN, Appellee.
On appeal from the 275th District Court of Hidalgo County, Texas.
MEMORANDUM OPINION
Before Justices Hinojosa, Rodriguez, and Garza
Memorandum Opinion by Justice Hinojosa
The State appeals from the trial court's order granting appellee Estanislado Morin's application for writ of habeas corpus and granting a new trial. (1) In three issues, the State contends the trial court (1) used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim, (2) abused its discretion in granting his application for writ of habeas corpus based on newly-discovered evidence, and (3) failed to enter the habeas corpus order within the statutory time limit. We reverse and remand.
A. Factual & Procedural Background
A jury found appellee guilty of two counts of indecency with a child and assessed his punishment at five years' imprisonment and a $ 5,000 fine for each count. Because the jury recommended that the prison sentences and fines for both counts be suspended and that appellee be placed on community supervision, the trial court suspended the prison sentences and fines for both counts, and placed appellee on community supervision for five years for each count. (2) Subsequently, appellee was deported and complied with the terms of his community supervision by mail.
On October 10, 2003, appellee applied for a post-conviction writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure, alleging (1) ineffective assistance of counsel and (2) newly-discovered evidence of innocence. In support of his newly-discovered evidence allegations, appellee attached an affidavit of the complaining witness, Veronica Salazar, (3) dated September 19, 2003, wherein she recanted her prior testimony. The State did not receive notice of the application until April 27, 2004, and filed a response on May 24, 2004. The State attached an affidavit, dated May 4, 2004, wherein Salazar recanted her September 19, 2003 recantation. The State also noted that appellee should have filed his post-conviction writ pursuant to article 11.072, instead of article 11.07. (4) See Tex. Code Crim. Proc. Ann. arts. 11.07, 11.072 (Vernon 2005).
On May 27, 2004, the trial court overruled appellee's claim of ineffective assistance of counsel and ordered a hearing on appellee's issue regarding the newly-discovered evidence of innocence. That hearing was held on June 29, 2004, and Salazar testified about her conflicting affidavits. The proceedings were then recessed to July 16, 2004, so that appellee, who was absent because of his deportation, could be present.
The hearing resumed on July 16, 2004, without appellee, who waived his presence. Both sides discussed the sixty-day statutory deadline at great length, and several times the State told the trial court that it would waive the sixty-day deadline, if it could be waived. Both sides mistakenly told the court when they thought the sixty-day deadline would elapse. Salazar testified again regarding her affidavits, explaining that she was pressured by family members to execute the September 19, 2003 affidavit, and her testimony at trial was truthful. After the hearing, the trial court said that before it ruled, it wanted additional memorandums from both sides. On October 22, 2004, the trial court ruled that Salazar's credibility was a question for a jury, and orally granted appellee a new trial. A written order reflecting this ruling was signed on March 4, 2005.
B. Standard of Review
In reviewing a district court's decision to grant a habeas corpus petition, we review the application of legal standards de novo. Ex parte Peterson, 117 S.W.3d 804, 819 (Tex. Crim. App. 2003). We afford almost total deference to the trial judge's determination of the historical facts supported by the record, especially when the fact findings are based on an evaluation of credibility and demeanor. See Ex parte Martin, 6 S.W.3d 524, 526 (Tex. Crim. App. 1999). However, "if the record will not support the trial judge's conclusions, then this Court may make contrary findings." See Ex parte Adams, 768 S.W.2d 281, 288 (Tex. Crim. App. 1989).
C. Discussion
In its third issue, the State contends the trial court erred by failing to enter its written order within the statutory deadline of sixty days. The State argues that because the order was not entered within the sixty-day period, the order is void and appellee's application was denied by operation of law. (5)
Article 11.072 of the code of criminal procedure provides that: "Not later than the 60th day after the day on which the State's answer is filed, the trial court shall enter a written order granting or denying the relief sought in the application." Tex. Code Crim. Proc. Ann. art. 11.072. Because the State's answer to appellee's application was filed on May 24, 2004, the 60th day was July 23, 2004.
Habeas corpus petitions are to be heard without delay. See Tex. Const. art. I, § 12; Tex. Code Crim. Proc. Ann. art 11.07; Martin v. Hamlin, 25 S.W.3d 718, 719 (Tex. Crim. App. 2000); McCree v. Hampton, 824 S.W.2d 578, 578-79 (Tex. Crim. App. 1992). The proper remedy to a trial court's delay in ruling on a habeas corpus petition under article 11.072 is to file for a petition for a writ of mandamus from this Court. See Ex parte Hargett, 819 S.W.2d 866, 868 (Tex. Crim. App. 1991). After a trial court's ruling on a habeas corpus petition, compliance with statutory deadlines becomes moot. See McCree, 824 S.W.2d at 579; see also Ex parte Kendrick, No. 01-95-00161-CR, 1996 Tex. App. LEXIS 3400, *2 (Tex. App.-Houston [1st Dist.] 1996, pet. ref'd) (not designated for publication).
The record shows the trial court failed to rule on appellee's habeas corpus petition within the sixty days required by article 11.072. However, because the trial court ultimately ruled on the petition, we conclude that the timing issue is moot. (6) The State's third issue is overruled.
In its first issue, the State contends the trial court used the incorrect legal standard to evaluate appellee's newly-discovered evidence claim. Claims of actual innocence fall into two categories: Herrera claims and Schlup claims. See Schlup v. Delo, 513 U.S. 298 (1995); Herrera v. Collins, 506 U.S. 390 (1993). A bare claim of actual innocence based solely on newly-discovered evidence is an Herrera claim, whereas a claim of actual innocence that is tied to a claim of constitutional error at trial is a Schlup claim. Schlup, 513 U.S. at 314. Because the Herrera and Schlup claims are different, they employ different burdens of proof. Id.
Because the verdict of a constitutional-error-free trial commands the greatest respect, the criminal justice system has a need for finality, and retrying stale cases that were originally tried years before imposes a heavy burden on the State, the burden of proof in Herrera claims is "extraordinarily high." See Herrera, 506 U.S. at 417; Davila v. State, 147 S.W.3d 572, 577-78 (Tex. App.-Corpus Christi 2004, pet. ref'd). To succeed in an Herrera claim, "the petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence." Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996).
Appellee's first trial was found to be error-free by this Court in Morin v. State, No. 13-01-00001, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd) (not designated for publication). Furthermore, appellee's claim of innocence is unaccompanied by a claim of constitutional error and is therefore an Herrera claim. Accordingly, appellee must show by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Because the trial court ruled that "the proper forum to decide the credibility of a victim is the jury," we conclude it used the wrong legal standard. The State's first issue is sustained.
In light of our disposition of the State's first and third issues, it is unnecessary to address the State's second issue. See Tex. R. App. P. 47.1.
The trial court's order granting appellee's application for a writ of habeas corpus is reversed. The case is remanded to the trial court to timely determine whether appellee has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. (7)
FEDERICO G. HINOJOSA
Justice
Do not publish. See Tex. R. App. P. 47.2(b).
Memorandum Opinion delivered and filed
this the 17th day of August, 2006.
1.
See Tex. Code Crim. Proc. Ann. art. 44.01(k) (Vernon Supp. 2006) ("The state is entitled to appeal an order granting relief to an applicant for a writ of habeas corpus under Article 11.072.").
2.
This Court affirmed appellee's conviction on May 23, 2002. See Morin v. State, No. 13-01-001-CR, 2002 Tex. App. LEXIS 3783 (Tex. App.-Corpus Christi 2002, pet. ref'd).
3. Appellee is Veronica Salazar's uncle by marriage to her mother's sister.
4. The record reflects that the parties agreed to proceed under article 11.072, and that relator did not need to refile.
5.
Because the State's third issue affects our ability to consider the State's remaining two issues, we will decide it first.
6.
We find it particularly disingenuous that the State, after misleading the trial court about when the sixty-day deadline would run, and then promising to waive it in any event, is now raising it as an issue on appeal.
7.
It would be improper for this Court to evaluate the merits of appellee's petition de novo because only the district court has the power to grant appellee's petition. See Tex. Code Crim. Proc. Ann. art 11.072 (Vernon 2005); see also Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (ordering remand of article 11.07 habeas petition to consider under correct standard).
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