IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-95,984-01
EX PARTE TRAVIS COBB, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 2018CR11604-W1 IN THE 399TH DISTRICT COURT BEXAR COUNTY
NEWELL, J., filed a concurring opinion.
Any controversy in this case is self-inflicted. The State agrees with
Applicant that he is actually innocent. The habeas court also agrees and
recommends granting relief on actual innocence under the legal
standard for actual innocence relief articulated over twenty-eight years
ago in Ex parte Elizondo. 1 Moreover, every member of this Court agrees
1 Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (holding a petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of new evidence). Cobb Concurring — 2
that Applicant is entitled to relief under Elizondo. And neither party is
asking this Court to revisit our holding or otherwise adjust the standard
for actual innocence relief.
Furthermore, no one points to any indication that the current
standard for actual innocence relief under Elizondo is unworkable. 2 The
Court routinely denies actual innocence relief and only grants on that
basis when an applicant can carry the Herculean burden necessary to
establish that such relief is warranted. 3 That a judge on this Court does
not want to declare an applicant actually innocent when the applicant
establishes actual innocence under the controlling legal standard does
not render the standard itself problematic. 4 And since Elizondo, there
2 Garcia v. State, 614 S.W.3d 749, 754 (Tex. Crim. App. 2019) (recognizing that this Court follows the doctrine of stare decisis “to promote judicial efficiency and consistency, encourage reliance on judicial decisions, and contribute to the integrity of the judicial process” and noting an exception is made when the Court determines that the precedent at issue was “poorly reasoned or is unworkable”) (internal citations omitted).
3 Compare, Ex parte Reed, No. WR-91,146-01, 2023 WL 3729867, at *1 (Tex. Crim. App. May 31, 2023) (per curiam) (not designated for publication) (granting actual innocence relief under Elizondo); Ex parte Quinney, No. WR-94,186-01, 2023 WL 2000091, at *1 (Tex. Crim. App. Feb. 15, 2023) (per curiam) (not designated for publication) (same); with, Ex parte Brown, No. WR-93,640-01, 2023 WL 3220989, at *1 (Tex. Crim. App. May 3, 2023) (per curiam) (not designated for publication) (denying actual innocence but granting relief on other grounds); Ex parte Gonzalez, 2022 WL 10731748, at *1 (Tex. Crim. App. Oct. 19, 2022) (per cuiam) (not designated for publication) (same).
4 Suggesting that historical and moral certainty should be a requirement of the standard for actual innocence is not a challenge to the nomenclature; it is a call to adjust the standard of review by increasing the burden on applicants to prove actual innocence. Cobb Concurring — 3
have been no arguments lodged by practitioners to revisit the standard
despite numerous invitations by members of this Court. 5
Also, by way of contrast, the Court has already tried and rejected
the application of a higher standard. 6 That standard was unworkable
because it was impossible to meet. 7 As we explained in Elizondo, “if
habeas corpus relief is to be conditioned upon a finding that no rational
juror could convict the applicant after introduction of the newly
discovered evidence, it becomes theoretically impossible for any habeas
applicant to sustain his burden because exculpatory evidence can never
outweigh inculpatory evidence under this standard of sufficiency.” 8
Raising the burden of proof to eliminate the weighing of the exculpatory
evidence against the record creates the same theoretical impossibility
by a different name. The current standard set out in Elizondo is a high,
but workable standard, not an impossible one.
5 See, e.g., Ex parte Cacy, 543 S.W.3d 802, 803 (Tex. Crim. App. 2016) (Yeary, J., concurring); Ex parte Chaney, 563 S.W.3d 239, 286 (Tex. Crim App. 2018) (Yeary, J. concurring); Ex parte Warfield, 618 S.W.3d 69, 74 (Tex. Crim. App. 2021) (Yeary, J., concurring).
6 See State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 398 (Tex. Crim. App. 1994) (holding that “in order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt”).
7 Elizondo, 947 S.W.2d at 206 (rejecting the implication of Holmes as unreasonable).
8 Id. at 205. Cobb Concurring — 4
And, of course, we cannot forget the reactions from the legislature
and our sister court to our recognition of a claim for relief based upon
actual innocence. Since Elizondo, the Legislature has codified this
Court’s ability to make a factual finding of actual innocence for purposes
of compensation for wrongful convictions. 9 And it later expanded the
ability of trial courts to render a factual finding on actual innocence with
an agreement by the State when relief has been granted in accordance
with a writ of habeas corpus. 10 For its part, the Texas Supreme Court
has recognized that compensation for actual innocence relief is
appropriate even when applicants establish innocence under the lower,
Schlup-based innocence standard. 11 The concern about the standard
for establishing innocence relief is a manufactured dilemma.
And yet, we are told that following binding precedent from this
Court, when no one is asking for us to do otherwise, demonstrates a
9 See Tex. Civ. Prac. & Rem. Code Ann. § 103.001(a)(2)(B).
10 See Act of June 17, 2011, 82nd Leg. R.S., ch. 698, 2011 Tex. Gen. Laws 1663, 1664. Indeed, even if we were to grant relief without declaring Applicant actually innocent, the habeas court could still do so regardless of our refusal to make such a declaration. Tex. Civ. Prac. & Rem. Code Ann. § 103.001(a)(2)(C); see also In re Brown, 614 S.W.3d 712, 721-22 (Tex. 2020).
11 In re Allen, 366 S.W.3d 696, 708 (Tex. 2012) (recognizing that Schulp-type innocence claims merit compensation based on a finding of actual innocence because “[w]here legislative enactments unambiguously direct our path, we must follow”). Cobb Concurring — 5
lack of humility. 12 That making arguments on behalf of the State to
deny relief even when the State is agreeing that the legal standard has
been met is an act of judicial restraint. 13 And Oceania has always been
at war with Eastasia. 14 If we are truly concerned with efficiently
resolving our cases, then we need to stop making up reasons to re-
examine our precedent when the parties themselves do not ask us to do
so.
With these thoughts, I join the Court’s order granting actual
innocence relief.
Filed: March 26, 2025
Publish
12 See Chaney, 563 S.W.3d at 288 (Yeary, J.
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IN THE COURT OF CRIMINAL APPEALS OF TEXAS
NO. WR-95,984-01
EX PARTE TRAVIS COBB, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 2018CR11604-W1 IN THE 399TH DISTRICT COURT BEXAR COUNTY
NEWELL, J., filed a concurring opinion.
Any controversy in this case is self-inflicted. The State agrees with
Applicant that he is actually innocent. The habeas court also agrees and
recommends granting relief on actual innocence under the legal
standard for actual innocence relief articulated over twenty-eight years
ago in Ex parte Elizondo. 1 Moreover, every member of this Court agrees
1 Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996) (holding a petitioner must show by clear and convincing evidence that no reasonable juror would have convicted him in light of new evidence). Cobb Concurring — 2
that Applicant is entitled to relief under Elizondo. And neither party is
asking this Court to revisit our holding or otherwise adjust the standard
for actual innocence relief.
Furthermore, no one points to any indication that the current
standard for actual innocence relief under Elizondo is unworkable. 2 The
Court routinely denies actual innocence relief and only grants on that
basis when an applicant can carry the Herculean burden necessary to
establish that such relief is warranted. 3 That a judge on this Court does
not want to declare an applicant actually innocent when the applicant
establishes actual innocence under the controlling legal standard does
not render the standard itself problematic. 4 And since Elizondo, there
2 Garcia v. State, 614 S.W.3d 749, 754 (Tex. Crim. App. 2019) (recognizing that this Court follows the doctrine of stare decisis “to promote judicial efficiency and consistency, encourage reliance on judicial decisions, and contribute to the integrity of the judicial process” and noting an exception is made when the Court determines that the precedent at issue was “poorly reasoned or is unworkable”) (internal citations omitted).
3 Compare, Ex parte Reed, No. WR-91,146-01, 2023 WL 3729867, at *1 (Tex. Crim. App. May 31, 2023) (per curiam) (not designated for publication) (granting actual innocence relief under Elizondo); Ex parte Quinney, No. WR-94,186-01, 2023 WL 2000091, at *1 (Tex. Crim. App. Feb. 15, 2023) (per curiam) (not designated for publication) (same); with, Ex parte Brown, No. WR-93,640-01, 2023 WL 3220989, at *1 (Tex. Crim. App. May 3, 2023) (per curiam) (not designated for publication) (denying actual innocence but granting relief on other grounds); Ex parte Gonzalez, 2022 WL 10731748, at *1 (Tex. Crim. App. Oct. 19, 2022) (per cuiam) (not designated for publication) (same).
4 Suggesting that historical and moral certainty should be a requirement of the standard for actual innocence is not a challenge to the nomenclature; it is a call to adjust the standard of review by increasing the burden on applicants to prove actual innocence. Cobb Concurring — 3
have been no arguments lodged by practitioners to revisit the standard
despite numerous invitations by members of this Court. 5
Also, by way of contrast, the Court has already tried and rejected
the application of a higher standard. 6 That standard was unworkable
because it was impossible to meet. 7 As we explained in Elizondo, “if
habeas corpus relief is to be conditioned upon a finding that no rational
juror could convict the applicant after introduction of the newly
discovered evidence, it becomes theoretically impossible for any habeas
applicant to sustain his burden because exculpatory evidence can never
outweigh inculpatory evidence under this standard of sufficiency.” 8
Raising the burden of proof to eliminate the weighing of the exculpatory
evidence against the record creates the same theoretical impossibility
by a different name. The current standard set out in Elizondo is a high,
but workable standard, not an impossible one.
5 See, e.g., Ex parte Cacy, 543 S.W.3d 802, 803 (Tex. Crim. App. 2016) (Yeary, J., concurring); Ex parte Chaney, 563 S.W.3d 239, 286 (Tex. Crim App. 2018) (Yeary, J. concurring); Ex parte Warfield, 618 S.W.3d 69, 74 (Tex. Crim. App. 2021) (Yeary, J., concurring).
6 See State ex rel. Holmes v. Court of Appeals, 885 S.W.2d 389, 398 (Tex. Crim. App. 1994) (holding that “in order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt”).
7 Elizondo, 947 S.W.2d at 206 (rejecting the implication of Holmes as unreasonable).
8 Id. at 205. Cobb Concurring — 4
And, of course, we cannot forget the reactions from the legislature
and our sister court to our recognition of a claim for relief based upon
actual innocence. Since Elizondo, the Legislature has codified this
Court’s ability to make a factual finding of actual innocence for purposes
of compensation for wrongful convictions. 9 And it later expanded the
ability of trial courts to render a factual finding on actual innocence with
an agreement by the State when relief has been granted in accordance
with a writ of habeas corpus. 10 For its part, the Texas Supreme Court
has recognized that compensation for actual innocence relief is
appropriate even when applicants establish innocence under the lower,
Schlup-based innocence standard. 11 The concern about the standard
for establishing innocence relief is a manufactured dilemma.
And yet, we are told that following binding precedent from this
Court, when no one is asking for us to do otherwise, demonstrates a
9 See Tex. Civ. Prac. & Rem. Code Ann. § 103.001(a)(2)(B).
10 See Act of June 17, 2011, 82nd Leg. R.S., ch. 698, 2011 Tex. Gen. Laws 1663, 1664. Indeed, even if we were to grant relief without declaring Applicant actually innocent, the habeas court could still do so regardless of our refusal to make such a declaration. Tex. Civ. Prac. & Rem. Code Ann. § 103.001(a)(2)(C); see also In re Brown, 614 S.W.3d 712, 721-22 (Tex. 2020).
11 In re Allen, 366 S.W.3d 696, 708 (Tex. 2012) (recognizing that Schulp-type innocence claims merit compensation based on a finding of actual innocence because “[w]here legislative enactments unambiguously direct our path, we must follow”). Cobb Concurring — 5
lack of humility. 12 That making arguments on behalf of the State to
deny relief even when the State is agreeing that the legal standard has
been met is an act of judicial restraint. 13 And Oceania has always been
at war with Eastasia. 14 If we are truly concerned with efficiently
resolving our cases, then we need to stop making up reasons to re-
examine our precedent when the parties themselves do not ask us to do
so.
With these thoughts, I join the Court’s order granting actual
innocence relief.
Filed: March 26, 2025
Publish
12 See Chaney, 563 S.W.3d at 288 (Yeary, J. concurring) (“In my view, we—judges on this Court—lack a humility appropriate to our true station when we declare to the public that an applicant is actually—and thus, factually, historically, and morally—innocent when—in factual, historical, and moral fact—he might very well not be.”). If the requirement is factual, historical, and moral certainty, it seems we should require that at the conviction stage rather than allow a wrongful conviction to stand even though the defendant “might very well not be” factually, historically, or morally guilty.
13 Id.
14 George Orwell, 1984 (1949).