NO. 10-90-097-CR
IN THE
COURT OF APPEALS
FOR THE
TENTH DISTRICT OF TEXAS
AT WACO
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WINNIFRED DOUGLAS ALFORD,
Appellant
v.
THE STATE OF TEXAS,
Appellee
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From 249th Judicial District Court
Johnson County, Texas
Trial Court # 27108
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DISSENTING OPINION
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Without discussing the 1986 change in the grounds for motions for new trial based on newly discovered evidence and citing two cases decided before that change, the majority has affirmed a denial of a motion for new trial which I believe met the revised standard.
Article 40.03 of the Code of Criminal Procedure, as it existed prior to 1985, provided in part:
New trials, in cases of felony, shall be granted the defendant for the following causes, and for no other:
(6) Where new evidence material to the defendant has been discovered since the trial. A motion for new trial on this ground shall be governed by the rules which regulate civil suits; . . . .
Tex. Code Crim. Proc. Ann. art. 40.03(6) (emphasis added).
Texas Rule of Appellate Procedure 30, which replaced article 40.03, now states, in part:
(b) Grounds. A new trial shall be granted an accused for the following reasons:
(6) Where new evidence favorable to the accused has been discovered since trial;
Tex. R. App. P. 30(b)(6) (emphasis added).
Under the code provision the trial judge determined if the defendant made a prima facie case for a new trial. Henson v. State, 200 S.W.2d 1007, 1013-15 (Tex. Crim. App. 1947). If so, the judge determined the credibility of the new evidence. Id. A new trial was to be granted unless the new evidence was "not probably true" or a different result would "not probably be reached on another trial." Id. The state carried the burden of showing that a different result would not probably be reached and all doubts were to be resolved in favor of the defendant. Id.
Over time, however, the distinction between the prima facie test and the credibility issue became blurred and the trial judge's sole determination of credibility often ended the inquiry. E.g., Wilson v. State, 786 S.W.2d 74 (Tex. App.--El Paso 1990, no pet.); Houston v. State, 667 S.W.2d 157 (Tex. App.--Houston [14th Dist.] 1982, no pet).
Information from the committee which recommended the appellate rules to the Court of Criminal Appeals shows that a conscious decision was made to change the word "material" to "favorable." Three reasons for the change are apparent. First, to reconcile the two lines of authority which had developed from Henson in the decisions of the Court of Criminal Appeals as evidenced by a comparison of the four-element prima facie test in Carlisle v. State and its predecessors with the four-element test of Eddlemon v. State and its predecessors, wherein the "not probably true" standard for evaluating the new evidence had crept into the test for determining whether a prima facie case had been made. See Henson, 200 S.W.2d at 1013-15; Eddlemon v. State, 591 S.W.2d 847, 849 (Tex. Crim. App. 1979); Carlisle v. State, 549 S.W.2d 698, 704 (Tex. Crim. App. 1977). Second, to corral the trial judge's unbridled discretion to reject the new evidence as not being credible, so that the court does not "weigh the testimony and pronounce for the jury in advance" because "it is clear that the impulse behind the Henson Court's burden shifting was the notion that the trial court ought not to be the arbiter of the weight of the new testimony." Jones v. State, 711 S.W.2d 35, 37 n.3 (Tex. Crim. App. 1986). Third, to assure that the convicting jury has heard all of the defendant's favorable, admissible evidence, including that discovered after the trial through no fault of his own from a "witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material." Compare Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920 (1967); Cruz v. State, 441 S.W.2d 542 (Tex. Crim. App. 1969).
This is not to say that just any favorable, new evidence will result in a new trial. The prerule cases support the proposition that the trial judge should, for purposes of the motion, accept the new evidence as true unless: it is shown that the new witness was not or could not have been in a position to know the facts he purports to know; the new witness is impeached at the hearing by a prior inconsistent statement; the new evidence contradicts either the mass of reliable testimony elicited at trial or almost conclusive physical circumstantial evidence developed at trial or the defendant's own testimony at trial; or the new testimony is internally inconsistent or otherwise inherently suspect. Jones, 711 S.W.2d at 37, n.4. The cases have also consistently held that public policy will prevent a retrial where the new evidence is merely cumulative, corroborative, collateral or impeaching. Jones, 711 S.W.2d at 37; Spencer v. State, 123 S.W. 858, 860 (Tex. Crim. App. 1913); Sambrano v. State, 754 S.W.2d 768, 770 (Tex. Civ. App.--San Antonio 1988, no pet.). If, based on these considerations, the trial judge determines that the evidence is not probably true, his reasons can be readily reviewed on appeal.
Thus, rule 30 allows a defendant to establish a prima facie case on a motion for new trial based on newly discovered evidence by proof of the following factors:
(1) the newly discovered evidence was unknown or unavailable to the movant at the time of trial;
(2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and
(4) the new evidence is favorable to the accused.
Tex. R. App. P. 30(b)(6); Eddlemon, 591 S.W.2d at 849; Carlisle, 549 S.W.2d at 704.
When a prima facie case has been made, the new evidence should be accepted as true if the whole record presents no good cause to doubt the credibility of the witnesses whose testimony constitutes the new evidence, either by reason of the facts proven at the trial or at the hearing on the motion or otherwise. Jones, 711 S.W.2d at 37 n.4. If it is clear that the new evidence is not true or that the new evidence, if true, would not change the result, the motion should be denied; but if it is doubtful as to how it would affect the verdict, the motion should be granted. Jones, 711 S.W.2d at 37 n.3. If the trial judge follows this procedure, the defendant will have the benefit of any reasonable doubt and the judge's discretion in granting or denying the motion will be appropriately preserved for appellate review. Henson, 200 S.W.2d at 1013-15; Jones, 711 S.W.2d at 36.
Roosevelt Owens testified at the jury trial that Appellant did not commit the burglary, but invoked his Fifth Amendment rights and would not testify further. At the posttrial hearing, Owens reiterated that Appellant did not take part in the burglary, then admitted his own part in the burglary, saying that he drove the car, naming the two other individuals who participated in the burglary, and giving details about the location of the house, its description and other facts about the burglary consistent with the mass of reliable trial testimony.
The new evidence that Owens, Randy Lynn and Richard McKnight, not Appellant, committed the burglary was admissible. Owens's testimony at the posttrial hearing was cumulative only to the extent that he testified again that Appellant did not commit the burglary. Beyond that, his testimony about the participants and events was direct, consistent with the evidence adduced at trial, adverse to his own penal interest, and favorable to Appellant.
I believe that the court should have, for purposes of the motion for new trial, accepted the new evidence as true and, failing to do so, abused its discretion in not granting a new trial. See Tex. R. App. P. 30(b)(6).
BILL VANCE
Justice
Opinion delivered and filed March 28, 1991
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