In the Court of Criminal
Appeals of Texas
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No. WR-49,763-02
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EX PARTE MARTIN LUCIO SANTILLAN,
Applicant
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On Application for a Writ of Habeas Corpus
Cause No. W97-51514-R(B) in the 265th District Court
Dallas County
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YEARY, J., filed concurring opinion.
I have previously said that I am not opposed to granting
conviction relief to an applicant who can meet the standard set out in Ex
parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). I just do not
agree that such an applicant has necessarily established, by virtue of
meeting that standard alone, that he is “actually innocent.” See Ex parte
Chaney, 563 S.W.3d 239, 286 (Tex. Crim. App. 2018) (Yeary, J.,
concurring) (“I do not regard the Elizondo standard as sufficiently
SANTILLAN – 2
rigorous to justify the nomenclature of ‘actual innocence.’”). One who
satisfies only the Elizondo burden (to establish only that, considering
the new evidence presented, by clear and convincing evidence, no
rational factfinder would now find the defendant guilty) has not
necessarily proven that he is actually innocent. Elizondo, 947 S.W.2d at
209.
In this case, however, it occurs to me that Applicant may well
have made a “conclusive” showing that he is in fact innocent of the crime
for which he was convicted. See Ex parte Cacy, 543 S.W.3d 802, 804 (Tex.
Crim. App. 2016) (Yeary, J., concurring) (“My bottom line is that, though
I remain content to grant habeas relief to any applicant who satisfies
the Elizondo standard, I would avoid the label of actual innocence—at
least in the absence of evidence that conclusively proves, not just that a
reasonable jury, by clear and convincing evidence, would not have
convicted him, but that the applicant manifestly did not commit the
offense.”). Even so, the Court’s per curiam opinion today insists on
declaring Applicant to be “actually innocent” simply because he has
satisfied the standard established in Elizondo. And for that reason,
regrettably, I cannot join the Court’s opinion. Respectfully, even though
I am convinced by the evidence presented that Applicant is in fact
actually innocent of the crime for which he was convicted, I concur only
in the result reached by the Court, not in its rationale.
FILED: February 22, 2023
PUBLISH.