After the applicant's jury was deadlocked on the question of guilt in his trial for aggravated sexual assault, the applicant pleaded guilty to the charge. Years later, the complainant in the case recanted her allegation fully explaining how and why she fabricated the charges against the applicant. The applicant pursued post-conviction relief under article 11.07. After doing an analysis under Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996), the convicting court recommended granting relief. We filed and set the case to determine whether the applicant's guilty plea precludes his actual innocence claim under Elizondo. We conclude that it does not.

There are two types of actual innocence claims that may be raised in a collateral attack on a conviction. A bare innocence claim, or Herrera-type ⁽¹⁾ claim "involves a substantive claim in which applicant asserts his bare claim of innocence based solely on newly discovered evidence." Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v. Delo, 513 U.S. 298, 314 (1995); Elizondo, 947 S.W.2d at 208). The other actual innocence claim, a Schlup-type claim, we explained "is a procedural claim in which applicant's claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at trial." Ibid. (citing Schlup, 513 U.S. at 314).

In Elizondo, we held that a bare innocence claim is cognizable in an application for writ of habeas corpus. Elizondo, 947 S.W.2d at 205. Incarceration of an innocent person offends federal due process, therefore a bare innocence claim raises a constitutional challenge to the conviction. Ibid. But we also said that a conviction should not be overturned lightly and that the burden on the applicant who has had error-free proceedings is exceedingly heavy to take into account society's and the State's interest in finality. Elizondo, 947 S.W.2d at 208. To be granted relief on a bare innocence claim, the applicant must show that the new evidence unquestionably establishes his innocence. Id. at 208-09. We interpreted this to mean that the applicant must prove by clear and convincing evidence that no reasonable juror would have convicted the applicant in light of the new evidence. Id. at 209. To determine whether a habeas applicant has reached this level of proof, the convicting court weighs the evidence of the applicant's guilt against the new evidence of innocence. Id. at 207.

We have never discussed what effect, if any, a guilty plea would have on this analysis. This is the question we turn to today.

There is nothing explicit in Elizondo or the cases on which it relies that prohibits or limits the analysis to jury or bench trials. Elizondo instructs the convicting court to "weigh the evidence in favor of the prisoner against the evidence of his guilt." Ibid.

In Elizondo, we said that our job was to "decide whether the newly discovered evidence would have convinced the jury of applicant's innocence." Ibid. That was in the context of that case, in which a jury had decided Elizondo's guilt. But we said a bare innocence claim is not an attack on the jury's verdict. Id. at 209. "What [the applicant] wants is a new trial based on newly discovered evidence which he claims proves his innocence." Ibid. The policy supporting our holding in Elizondo, that the punishment of an innocent person violates federal due process, is the same for an applicant regardless of whether his case was heard by a judge or jury or whether he pleaded guilty or not guilty. See ibid.

Convicting courts reviewing bare innocence claims should give great respect to the jury's verdict of guilt. Convicting courts should also give great respect to knowing, voluntary, and intelligent pleas of guilty. But we should not foreclose relief because a defendant pleaded guilty when the policy behind granting relief on a bare innocence claim is the same.

The legislature has enacted two statutes that contemplate a defendant's being able to seek relief on a claim of actual innocence after a guilty plea: Code of Criminal Procedure article 64.03(b), and Texas Civil Practices and Remedies Code section 103.001.

Newly-enacted Chapter 64 of the Code of Criminal Procedure sets out procedures for convicted defendants to obtain forensic DNA testing. Article 64.03(b) states that:

A convicted person who pleaded guilty or nolo contendere in the case may submit a motion under this chapter, and the convicting court is prohibited from finding that identity was not an issue in the case solely on the basis of that plea.

Tex. Code Crim. Proc. art. 64.03(b). Defendants who pleaded guilty or nolo contendere may obtain forensic DNA testing if they meet the requirements of Chapter 64.

Chapter 64 provides for forensic DNA testing but does not provide a vehicle for obtaining relief if testing reveals affirmative evidence of innocence. The vehicle for relief after obtaining test results that constitute affirmative evidence of innocence is article 11.07 for noncapital felonies and article 11.071 for capital murder. The legislature has not limited actual innocence claims based on forensic DNA testing to defendants who pleaded not guilty and went to trial. Neither should we.

Chapter 103 of the Civil Practices and Remedies Code sets out procedures to compensate persons wrongfully imprisoned. Section 103.001 names claimants who are eligible for compensation. Before 2001, the statute provided compensation only for claimants who had pleaded not guilty to the criminal charge that led to imprisonment. The legislature amended the statute, and it now states:

(a) A person is entitled to compensation if:

(1) the person has served in whole or in part a sentence in prison under the laws of this state;

(2) the person:

(A) has received a full pardon on the basis of innocence for the crime for which the person was sentenced; or

(B) has been granted relief on the basis of actual innocence of the crime for which the person was sentenced.

Tex. Civ. Prac. & Rem. Code § 103.001(a). Compensation is available under this provision for claimants who have been granted relief on the basis of an actual innocence claim, regardless of how the claimant pleaded to the charges.

The State makes three main arguments against our conclusion: (1) the applicant's plea is not subject to collateral review; (2) public policy is served by finality; and (3) granting relief to the applicant would encourage and reward perjury.

The State argues the applicant's plea is not subject to collateral review. Habeas corpus, it argues, is traditionally governed by equitable principles, and the applicant's conduct in this case may preclude his being entitled to relief. Here the State claims the guilty plea and judicial confession prevent collateral review. But we do not make the distinction between those who have pleaded guilty and those who have pleaded not guilty for other claims of relief raised in habeas applications.

We address cognizable claims in habeas proceedings regardless of the plea in the case. We are unpersuaded that equitable principles should prevent an innocent person from obtaining the relief simply because he pleaded guilty. There is nothing equitable about permitting an innocent person to remain in prison when he produces new evidence that unquestionably shows that he did not commit the offense for which he is incarcerated.

The purpose of criminal proceedings is to separate the guilty from the innocent. Herrera, 506 U.S. at 398 (citing United States v. Nobles, 422 U.S. 225, 230 (1975)). From time to time something goes awry in the process by which a defendant is convicted, for example, when a complainant makes false charges. The error occurs within the judicial system though it happened through no fault of the convicting court or the parties. It is appropriate for the judicial system to correct the error through habeas corpus.

The State says that a guilty plea waives any contention regarding the sufficiency of the evidence. This is true, but the State's assertion that a claim of actual innocence is nothing more than a challenge to the sufficiency of the evidence is not true.

An applicant claiming actual innocence is not claiming that the evidence at trial was insufficient to support the conviction. On the contrary, the successful applicant shows by clear and convincing evidence that, despite the evidence of guilt that supports the conviction, no reasonable juror could have found the applicant guilty in light of the new evidence. The burden is on the applicant because we presume that the conviction is valid. See Elizondo, 947 S.W.2d at 207.

Moreover, if an actual innocence claim were nothing more than a challenge to the sufficiency of the evidence, then no claim of actual innocence--whether the conviction was based on a jury trial, bench trial, or guilty plea--would be cognizable on a writ of habeas corpus. Ex parte Easter, 615 S.W.2d 719, 721 (Tex. Crim. App. 1981) (attack on sufficiency of the evidence at trial may not be raised in habeas proceedings).

The State finds it significant that the applicant's trial resulted in a hung jury that never made a finding on the applicant's guilt. According to the State, the crux of the analysis in Elizondo and its progeny is if the new evidence is such that it undermines confidence in the jury's finding of guilt, then the jury's verdict was infirm. Were we to follow the State's argument to its natural conclusion, a defendant could raise a bare innocence claim only if guilt had been determined by a jury. But the policy supporting the relief granted in Elizondo was that federal due process is violated when an innocent person is incarcerated. Elizondo, 947 S.W.2d at 209. That policy applies with no less force when the conviction is obtained by a bench trial or guilty plea.

The existence of a trial record permitting an Elizondo analysis is not sufficient reason to ignore a guilty plea, according to the State. A convicting court is not free to ignore a guilty plea when reviewing a collateral attack. "Rather, the court charged with deciding such a claim should make a case-by-case determination about the reliability of the newly discovered evidence under the circumstances." Id. at 207 (quoting Herrera, 506 U.S. at 244 (Blackmun, J., dissenting)). The circumstances may include that an applicant pleaded guilty. A reading of the extensive findings of the convicting court in this case shows that convicting courts are capable of fully considering the significance of a guilty plea and weighing that circumstance against the newly discovered evidence.

The State next argues that the applicant's argument rewards and encourages perjury. The applicant entered a false plea and compounded this with a false judicial confession. The State claims that allowing this applicant to obtain relief will encourage innocent defendants to plead guilty to get a lighter sentence and then collaterally attack the conviction when the sentence becomes too difficult to bear. This ignores the realities of pursuing a bare innocence claim under article 11.07. A defendant would have to assume that new evidence that affirmatively shows his innocence will appear from nowhere. If a habeas application amounts to a challenge to the sufficiency of the evidence, the applicant will not obtain the relief he seeks. See e.g., Easter, 615 S.W.2d at 721.

The guilty plea process is not perfect. But guilty pleas allow the parties to avoid the uncertainties of litigation. The decision to plead guilty, as we have seen in this case, may be influenced by factors that have nothing to do with the defendant's guilt. The inability to disprove the State's case, the inability to afford counsel, the inability to afford bail, family obligations, the need to return to work, and other considerations may influence a defendant's choice to plead guilty or go to trial. ⁽²⁾

Being aware of these considerations, we will not preclude actual innocence claims because the conviction was the result of a guilty plea.

Finally, the State argues that public policy is served by finality. We agree. Convictions based on knowing, intelligent, and voluntary pleas of guilty ought to be afforded the highest level of respect. As the Supreme Court quoted in United States v. Timmreck:

Every inroad on the concept of finality undermines confidence in the integrity of our procedures; and, by increasing the volume of judicial work, inevitably delays and impairs the orderly administration of justice. The impact is greatest when new grounds for setting aside guilty pleas are approved because the vast majority of criminal convictions result from such pleas. Moreover, the concern that unfair procedures may have resulted in the conviction of an innocent defendant is only rarely raised by a petition to set aside a guilty plea.

Timmreck, 441 U.S. 780, 784 (1979) (quoting United States v. Smith, 440 F.2d 521, 528-529 (7th Cir. 1971) (Stevens, J., dissenting)). Though Timmreck was based on an interpretation of the federal rules, the underlying principle is the same in Texas. The Supreme Court noted that a federal rule violation "does not present 'exceptional circumstances where the need for the remedy afforded by the writ of habeas corpus is apparent.'" The same is true in our habeas proceedings. Cognizable claims on habeas are limited to claims to "jurisdictional or fundamental defects and constitutional claims." Ex parte Graves, 70 S.W.3d 103, 109 (Tex. Crim. App. 2002).

We are not dealing with a statutory or rule violation in this case; here, the applicant presents a valid claim of actual innocence based on evidence that was unavailable at the time he pleaded guilty.

In Brady v. United States, 397 U.S. 742 (1970), the United States Supreme Court noted that a rule that made pleading guilty attractive to defendants because it allowed them to avoid the death penalty did not render the pleas involuntary when the Court later held that the statute was unconstitutional. Id. at 757. The Court found it significant that nothing in the record indicated that the conviction was inaccurate or unreliable. Ibid.

In cases in which the Supreme Court has held there is no collateral review after a guilty plea, it has specifically noted the absence of findings that the plea was inaccurate or unreliable.

This is not to say that guilty plea convictions hold no hazards for the innocent or that the methods of taking guilty pleas presently employed in this country are necessarily valid in all respects. This mode of conviction is no more foolproof than full trials to the court or to the jury. Accordingly, we take great precautions against unsound results, and we should continue to do so, whether conviction is by plea or by trial. . . . But our view is to the contrary and is based on our expectations that courts will satisfy themselves that pleas of guilty are voluntarily and intelligently made by competent defendants with adequate advice of counsel and that there is nothing to question the accuracy and reliability of the defendants' admissions that they committed the crimes with which they are charged. In the case before us, nothing in the record impeaches Brady's plea or suggests that his admissions in open court were anything but the truth.

Brady, 397 U.S. at 757-58. If we have reason to think that an applicant's plea was accurate and reliable, we would conclude that the claim would not support relief for actual innocence. But when a habeas record supports a finding that new evidence unquestionably established an applicant's innocence, it is difficult to conclude that a prior guilty plea was accurate or reliable. The holdings in Brady and Timmreck do not require that we ignore clear and convincing evidence of actual innocence.

The State also cites Schlup v. Delo, 513 U.S. 298, 321 (1995), for the proposition that the interest in releasing innocent defendants does not extend to prisoners whose guilt is conceded or plain. The case cited for this proposition in Schlup discussed finality in relation to claims of error at trial, not actual innocence claims, which the Court explicitly permits in Schlup. See Kuhlman v. Wilson, 477 U.S. 436, 452 (1986). And though an applicant concedes his guilt by pleading guilty, when new evidence unquestionably established innocence, a conclusion that the applicant was guilty of the offense is anything but plain.

The State claims that allowing this applicant to obtain relief would allow any applicant to seek relief if he can show actual innocence and an excuse for the guilty plea. As the cases the State cites show, claims of actual innocence are rare and the cases in which relief is granted are even more rare. See Schlup, 513 U.S. at 321 n.36 (and cases cited therein). We are confident that the convicting courts of Texas can tell the difference between a meritorious claim of actual innocence accompanied by compelling new evidence and a bogus claim accompanied by bare allegations of innocence. Applicants may file applications, but it does not mean that convicting courts will recommend granting relief.

We also do not think that the convicting courts will be flooded with countless applications. Applicants have been permitted to file bare innocence claims in the courts of this State since Elizondo was handed down six years ago. The flood of applications has not materialized. Nor have we seen evidence that Elizondo's holding encouraged inmates or their friends and family to harass victims of crimes to encourage them to recant. Since Elizondo was handed down, in a few cases when applicants have presented credible and compelling new evidence of innocence that met the Elizondo standard, innocent people have been released from punishment. The criminal justice system has done justice.

We now review the convicting court's recommendation to grant relief. The facts according to the habeas record show that the applicant was tried on the charge of aggravated sexual assault in July 1997. The jury conveyed that it was hopelessly deadlocked. Ten jurors had voted to acquit, and two to convict the applicant. The applicant pleaded guilty to the charge before the trial court could declare a mistrial.

The convicting court accepted the guilty plea and deferred adjudication, placing the applicant on community supervision for ten years. More than two years later, the convicting court revoked the applicant's community supervision and sentenced him to the remainder of his ten-year term in the institutional division of the Texas Department of Criminal Justice.

Approximately two years later, the applicant filed this application for writ of habeas corpus under article 11.07. The applicant alleged that he learned that the complainant in his case had consistently recanted her allegations since before his trial. To support the recantation, the applicant submitted affidavits from the complainant, from the complainant's best friend at the time the allegations were made, A.S., and the complainant's boyfriend at the time the allegations were made, B.G.

The applicant gave several reasons for pleading guilty to the offense. He was unable to make bail and keep his retained counsel for the first trial. The applicant was unable to afford to continue with retained counsel for a second trial. The applicant had already spent ten months in jail awaiting his first trial and would have had to continue his incarceration during a second trial. The applicant was addicted to drugs at the time he entered his plea.

The convicting judge explained in her findings that her recollection of the trial and plea proceedings support the applicant's claim that his guilty plea was not accurate. The judge remembered being surprised that the applicant pleaded guilty especially in light of the evidence that had been presented during the trial that resulted in a hung jury. After going through the plea proceedings, the judge assumed that there were facts affecting the applicant's decision to plead guilty of which she was unaware.

Taking into consideration the reasons given by the applicant for pleading guilty and her own recollection of the trial and plea proceedings, the convicting judge found the reasons given by the applicant in the habeas proceedings were more credible than the assertions made to the court at the time of the plea.

The convicting judge next considered the new evidence that affirmatively showed the applicant's innocence. The applicant's newly discovered evidence includes affidavits and testimony that the complainant recanted her allegations almost immediately after making the allegation and that during the time between the allegation and the trial, the complainant consistently-to her friends-denied the truth of the allegation. This is corroborated by affidavits from A.S. and B.G.

In her affidavit and testimony at the habeas evidentiary hearing, A.S. explained that two to three days after the complainant made her allegations, the complainant told her that the allegations were not true. Before trial, the complainant confided to A.S. that she was worried that her testimony would not be believed. After testifying, the complainant told A.S. that she thought her testimony had gone well and that she thought she had been convincing.

B.G.'s affidavit notes that he heard about the allegations from the complainant's mother. He said that when he talked to the complainant about the allegations, she told him that they were not true and that she fabricated the charges because she hated the applicant and wanted him to leave. As the trial approached, B.G. tried to convince the complainant that she should stop lying about the charges. The complainant became angry with B.G. and accused him of being disloyal.

In the complainant's affidavits, she explains why she fabricated the charge against the applicant. She explained that the applicant's abuse of her mother, the drug use by the applicant and her mother, her mother's claims that the applicant was unfaithful, and personal disagreements between herself and the applicant, among other reasons led her to fabricate the charges. Her explanations about whom she told about the fabrication and when are consistent with the affidavits of A.S. and B.G.

According to her affidavit, the complainant did not plan the fabrication. Her mother asked her whether the applicant has ever done anything to her. She told her mother that the applicant had sexually assaulted her. At the trial, she explained, she wove the allegations of sexual assault into events that had actually occurred. She said she pretended to cry when she found out the applicant received community supervision. She decided to recant officially several months after she received letters from B.G. explaining that the applicant had gone to prison.

The convicting court recalled the trial, due to "the exceptional nature of the testimony adduced before it during the trial." The court explained, "Rife with material contradictions, this Court observed instance upon instance of testimony that either conflicted with testimony given by other State's witnesses or which was simply implausible." The court gave examples of inconsistent and implausible testimony.

In one example, the complainant testified that she had described in her diary, which she kept at her home, some of the events that formed the accusation against the applicant. Defense counsel requested that the complainant produce the diary, and the convicting court ordered her to do so the following day. The complainant and her mother came to court the next day without the diary stating that their home had been burglarized the night before and that the only thing taken was the diary.

In another instance, there was conflicting testimony about a blood-stained shirt said to have been found by the complainant's aunt. The complainant testified that she had left the shirt at the scene of an attack in Oklahoma. The complainant's aunt testified that she found the shirt under the complainant's bed in Dallas. She also testified that she offered the shirt to an investigator who said he could not accept it.

Also, the doctor who examined the complainant explained that she was unwilling to express a definitive opinion about her findings, but she said there were "[n]o physical findings suggestive of abuse at this time."

The convicting court, after weighing the evidence from the trial, the applicant's guilty plea, the applicant's stated reasons for pleading guilty, and the newly discovered evidence found "the evidence of Applicant's guilt is so far outweighed by the evidence of Applicant's innocence as to be entirely one-sided." Having so found, the convicting court concluded that the new evidence unquestionably established the applicant's actual innocence of the aggravated sexual assault of the complainant. The court recommended granting the relief sought by the applicant.

The record supports a finding that the recantation in this case is more credible than the testimony at trial. The affidavits of the complainant, B.G., and A.S. and the testimony of A.S. at the habeas hearing contradict the complainant's testimony at trial and constitute affirmative evidence of the applicant's innocence. We are convinced by clear and convincing evidence that no rational jury would convict the applicant in light of the new evidence. Relief is granted.

The Director of the Texas Department of Criminal Justice, Institutional Division is ordered to return the applicant to the custody of the convicting court so that he may answer the charges against him.

Delivered: December 18, 2002.

Publish.

1. See Herrera v. Collins, 506 U.S. 390 (1993).

2. Innocent people may plead guilty, for various reasons. An innocent person may want to take advantage of a discounted sentence in a plea bargain, rather than gamble on a far greater sentence if a mistaken verdict is returned. Or a person may not know what he is admitting and accept his attorney's advice that a guilty plea is prudent. Or a person may be under some pressure to accept responsibility for something he did not do, in order to protect someone else, whom he loves or fears.

United States v. Timbana, 222 F.3d 688, 718 (9th Cir. 2000) (Kleinfeld, J., dissenting)