Rivera, Cassandra

• Court: Court of Criminal Appeals of Texas
• Decided: November 23, 2016
• Docket: WR-84,698-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

NOS. WR-84,700-01 & WR-84,700-02

EX PARTE KRISTIE MAYHUGH, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1995CR1255A-W1 & 1995CR1256A-W1 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY

NO. WR-84,701-01

EX PARTE ELIZABETH RAMIREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1995CR1256B-W1 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY NOS. WR-84,698-01 & WR-84,698-02

EX PARTE CASSANDRA RIVERA, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1995CR1255C-W1 & 1995CR1256C-W1 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY

NOS. WR-84,697-01 & WR-84,697-02

EX PARTE ANNA VASQUEZ, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 1995CR1255D-W1 & 1995CR1256D-W1 IN THE 175TH DISTRICT COURT FROM BEXAR COUNTY

NEWELL , J., delivered the opinion of the Court in which JOHNSON , and RICHARDSON , JJ., joined. KELLER , P.J., AND KEASLER , J., joined majority opinion as to part three. ALCALA , J., filed a concurring opinion in which MEYERS , J., joined. HERVEY and YEARY , JJ., did not participate.

O P I N I O N

According to Applicants’ expert, Dr. Alexandria Doyle, the sexual-assault

allegations in this case do not pass “the smell test.” This emotional response

certainly captures the sense of outrage that so many harbor about these cases.

Whether it is in articles or a documentary, these cases involving “The San

Antonio Four” have been well dissected in popular media. See e.g. Southwest

of Salem: The Story of the San Antonio Four (Deborah S. Esquenazi Productions

2016); Bridgette Dunlap, Inside Case Behind Wrongful Conviction Doc Mayhugh et al–3

'Southwest of Salem', ROLLING STONE , Oct. 13, 2016; Maurice Chammah, Case

of “San Antonio Four” Set to Enter its Final Act, THE TEXAS TRIBUNE , March 29,

2015; Maurice Chammah, A Growing Battle for Exoneration, N.Y. TIMES , Nov.

18, 2012.

But we are not asked to apply a “smell test.” Rather, we are asked to

decide whether the newly available evidence of innocence undermines the

legally sufficient, but hard-to-believe version of events that led to the

convictions of these four women. We hold that it does and that these four

women have unquestionably established that they are innocent of these

charges.

I. Introduction

In the summer of 1994, two young girls alleged that four young lesbian

women, including the girls’ aunt, had spontaneously and violently gang-raped

them on two occasions within a single week. The who-what-when-and-where

changed from the outcries, to the statements made to the police, to the

statements made to the examining doctor, to the testimony at two trials. But

those inconsistencies were easy to set aside given the physical findings

associated with child sexual abuse found by Dr. Nancy Kellogg, who asserted

that the older child showed physical, objective signs of sexual abuse: In light

of Dr. Kellogg’s testimony, the girls’ stories had the ring of truth.

These inconsistencies can no longer be set aside in light of what we know Mayhugh et al–4

now. Dr. Kellogg has retracted her testimony about the physical indicators of

past trauma. She now agrees with the defense that there are no definitive

signs of sexual abuse, and she has acknowledged that her testimony at trial

was wrong. All parties and courts, including this one, agree that all four

Applicants are entitled to have their convictions and sentences vacated because

of the introduction of what is now known to be scientifically invalid or inaccurate

evidence.

But there is a great deal more that casts doubt upon the reliability of the

convictions in these cases than just the unreliable scientific evidence. One of

the complainants, the younger sister, now an adult, has recanted her testimony

and explained how and why she and her sister made up a story about her aunt

and her aunt’s three friends. Expert testimony regarding false allegations of

sexual assault now establishes that this complainant’s recantation was genuine,

voluntary, and sincere, and her story fits the profile of other false claims of

sexual abuse. Though the other complainant has not recanted her trial

testimony, her sister’s recantation, credited by the trial court, cannot be

logically reconciled with the remaining testimony establishing guilt.

Furthermore, the Applicants have also presented evidence that the

complainants’ father, Javier Limon, has engaged in a pattern of threatening

behavior towards the complainants and false allegations of sexual assault to

gain leverage in disputes over custody of his children. The Applicants have Mayhugh et al–5

presented credible testimony that the complainants’ father threatened and

assaulted the two complainants to ensure that they accused these women of

sexual abuse. Moreover, the Applicants have presented credible expert

testimony explaining how the techniques used during the investigation of the

alleged crimes could have reinforced the complainants’ childhood belief in a

crime that never occurred.

Finally, the Applicants have presented new expert testimony that they are

not sex offenders. None of the four Applicants fit the profile for sex offenders,

and psychological evaluations have confirmed this. From the moment these

allegations were made, all four Applicants have consistently maintained their

innocence and each other’s innocence despite multiple, separate interviews.

We conclude that now, with this clear and convincing evidence

establishing innocence combined with the lack of reliable forensic opinion

testimony corroborating the fantastical allegations in this case, no rational juror

could find any of the four Applicants guilty of any of the charges beyond a

reasonable doubt. We agree with the habeas court that relief is required based

on new scientific evidence, but we also hold that the Applicants have carried

their burden to establish a claim of actual innocence. Although the habeas

court did not recommend granting relief on actual-innocence grounds, it did so

strictly because only one of the two complainants recanted. It relied upon a

“legal sufficiency” analysis without considering the overwhelming evidence of Mayhugh et al–6

innocence and its impact upon the State’s already weak cases. We disagree

with the habeas court's apparent assessment that the lack of a recantation from

one of the two complainants is fatal to Applicants’ actual-innocence case. We

exercise our authority to reach the contrary conclusion, and, accordingly, grant

relief under a more comprehensive and robust actual-innocence analysis. See

Ex parte Reed, 271 S.W.3d 698, 727–28 (Tex. Crim. App. 2008).

II. The Facts as Presented in the Two Trials

In the summer of 1994, nine-year-old V.L. and her seven-year-old sister,

S.L., stayed with their nineteen-year-old aunt, Elizabeth Ramirez, for several

days while their mother, Rosemary Camarillo, was in Colorado.1 During the

course of their stay with Elizabeth, who shared the apartment with her one-time

girlfriend, Kristie Mayhugh, another couple, Anna Vasquez and Cassandra

Rivera, visited the apartment frequently. Cassandra and her children even

spent the night a few times during the week of the girls’ visit.

The girls’ grandmother, Serafina Limon,2 said that, when the girls came

home, they were not acting “normal;” they were subdued, scared, and refused

to make eye contact. In mid-September, Serafina noticed the girls playing with

their dolls in a sexual manner. When she asked the girls why they were doing

1 The testim ony in both trials is not very specific with regard to when the events were have alleged to have taken place. At least one version of events places the alleged assaults in August of 1994.

2 Ms. Lim on’s first nam e is spelled two different ways: Serifina and Serafina. W e use Serafina for consistency’s sake. Also Elizabeth Ram irez is som etim es referred to as Liz and Cassandra Rivera is som etim es referred to as Cassie. Mayhugh et al–7

this, V.L. told Serafina that she and her sister had been sexually assaulted at

their aunt’s apartment by the four women.

The girls’ basic accounts were this: the four women stripped them, held

them down, fondled them, and stuck objects and liquids into their vaginas. The

girls stated they were assaulted on two different occasions. The assaults were

back-to-back the first time, V.L. first and then S.L., and then simultaneously the

next time. According to both girls, these assaults were completely spontaneous

without any suspicious behavior leading up to them.

By V.L.’s account, the assaults occurred a couple of days into the visit to

their aunt’s apartment. V.L. and her sister were playing outside when both girls

were called inside. According to V.L., the women began yelling things at her

like “why did you do this? Why did you do that?” V.L. was inconsistent when

explaining where S.L. was during the first assault; S.L. was either locked

outside, or in the living room. V.L. was brought into Elizabeth’s bedroom,

where, according to V.L., Elizabeth held her down while the other women

started touching her; the four women did not touch each other, only her. V.L.

said she kicked and screamed as the women put stuff inside her vagina–liquid

stuff, a powder, and “a tampon or something.” She said that it hurt. And after

they finished, they told her to go take a shower. According to V.L., she heard

S.L. screaming and crying in the bedroom as she came out of the shower.

Then, S.L. came out of the bedroom with no pants on, and the women told S.L. Mayhugh et al–8

to take a shower. V.L. then went back outside to play.

V.L. said that the next time she was assaulted, it was again in the

bedroom by Anna and Liz (and maybe Cassie), while S.L. was assaulted in the

living room by Cassie. Or, they were assaulted together. She made a

statement that “they started putting some kind of stuff in us. Then they put

liquid in us. Cassie was the one that put the liquid in me. They did this to S.L.,

too.”

S.L.’s account was similar with regard to the fundamentals of being held

down and having things inserted into her vagina. But S.L. said that, during the

first assault, when she came inside, she heard V.L. screaming in the bedroom.

She tried to peek in. Then everyone came out of the bedroom, and she asked

V.L. if she was okay. According to S.L., V.L. went outside to play, and the four

women took her pants and underwear off and laid her down on the floor of the

living room. Then, Cassie "put something in my private" while the other women

were "holding me down." S.L. indicated that the second assault happened the

next day in the living room, when "they put the same thing in my private."

Both girls said that they were threatened by the women though they were

unclear about whether it was with a knife, a gun, or two guns, and whether it

was by Liz, Anna, Liz and Anna, or Cassie and told to keep quiet about the

assaults.

Discerning a coherent picture of the alleged assaults from the different Mayhugh et al–9

versions provided by each complainant takes considerable intellectual effort.

There are multiple different versions of events, each one differing from the

others, sometimes irreconcilably so. And there are significant inconsistencies

between the versions told by each complainant. While there appears to have

been enough consistency to barely cover the essential elements of the offenses

at issue, the stories by themselves provided weak evidence of guilt at best.

On September 28th, the girls were taken by their father, Javier Limon,

to a clinic for sexual-assault exams. Dr. Kellogg, an expert in the science of

physical findings associated with child sex abuse, took histories from the girls

and examined them. She made physical findings that were consistent with the

history of sexual abuse each girl related.

Meanwhile the four women maintained their complete innocence. None

had ever been accused of any kind of criminal, violent, or otherwise anti-social

behavior, toward children or anyone else. Each completely cooperated with the

homicide detective assigned as the lead investigator in the case, without

invoking their right to an attorney. All submitted to individual interrogations

and gave signed written statements, expressing bewilderment at the

accusations and maintaining their innocence.

Elizabeth Ramirez was tried first and alone, in 1997, for sexually

assaulting V.L. V.L. testified, but S.L. did not. Dr. Kellogg testified that V.L.’s

statements about the assaults were “spontaneous . . . detailed . . . guileless . Mayhugh et al–10

. . uncontrived.”3

Dr. Kellogg said V.L.’s exam was not normal: There was a scar on the

hymen, a healed tear. The scar indicates “painful” penetration. And although

there was no way to tell when the penetration happened, it was no longer than

nine years before the exam because V.L. was nine at the time of the exam. Dr.

Kellogg also testified that playing with dolls in a sexual manner was acting out

and “with sexual acting out it tends to be more specifically linked to sexual

abuse.”

Elizabeth, age 20, testified in her own defense. She said she did not do

anything to the children, she had “no knowledge how they could even think of

me doing something like that.” She said there was no gun, no knife, no threat.

Nevertheless, she was convicted of aggravated sexual assault of a child and

indecency with a child, and sentenced to 37 and 15 years’ imprisonment. The

court of appeals affirmed. Ramirez v. State, 04-97-00144-CR, 1998 WL 412437

(Tex. App.—San Antonio July 22, 1998, pet. ref’d) (not designated for

publication).

Kristie Mayhugh, Cassandra Rivera, and Anna Vasquez were tried

3 Generally, expert testim ony that child victim s of sexual abuse have provided truthful testim ony is inadm issible. Yount v. State, 872 S.W .2d 706, 712 (Tex. Crim . App. 1993). W e have held that testim ony that a child-abuse victim did not exhibit “behaviors that point to being m anipulated” was not a direct com m ent on the truthfulness of the child victim ’s allegations. Schultz v. State, 957 S.W .2d 52, 73 (Tex. Crim . App. 1997). But here, Dr. Kellogg’s opinion testim ony was specific to the child’s statem ents and characterized V.L.’s testim ony as truthful. Thus, Dr. Kellogg’s characterization of V.L.’s allegations as “guileless” and “uncontrived” would run afoul of the general prohibition against adm itting such testim ony that we announced in Yount. Mayhugh et al–11

together a year later for sexually assaulting both S.L. and V.L. Both girls

testified. Between the two trials, Dr. Kellogg found out that the girls had

undergone sexual assault exams in 1992.4

Dr. Kellogg testified that, in relating the events, S.L. was scared,

disconnected, uncontrived, and very open. Dr. Kellogg said that, when she

examined S.L.’s genitals, she had a lot of redness, which could be caused by

irritation, inflammation, infection, or sexual trauma. Also, S.L.’s hymen was

thickened, which “could be due to abuse with trauma,” or could have “nothing

to do with trauma but it’s a normal variation.” She observed that, in the 1992

exam, S.L.’s hymen was thickened, and red, but not as red as it was in the

1994 exam. On cross examination, she acknowledged that S.L.’s exams were

normal but “it doesn’t rule out abuse.”

Dr. Kellogg again testified about V.L.’s statement and abnormal

exam–with the scarring on the hymen indicating vaginal penetration. And

because the scar was not present in the photos taken during the 1992 exam,

the injury causing the scar happened “since the exam of 92.”

All three defendants testified. All three denied any inappropriate contact

with the girls. All three were convicted of two counts of aggravated sexual

4 Though it was never revealed to the jury in either trial, the 1992 sexual assault exam s were the result of an allegation of sexual abuse orchestrated by Javier Lim on in Colorado prior to the allegations of sexual assault in these cases. These 1992 allegations concerned claim s that V.L. and S.L. and been sexually assaulted by a ten-year-old babysitter. At the hearing on the Applicants’ writ applications, these allegations were revealed to be false and that no such child had ever existed. Mayhugh et al–12

assault of a child and two counts of indecency with a child. All three were

sentenced to fifteen years’ imprisonment on the aggravated-sexual-assault

charges, and ten years’ imprisonment on the indecency charges. The court of

appeals in three separate, but nearly identical opinions, affirmed. Mayhugh v.

State, Nos. 04-98-00262-CR & 04-98-00263-CR, 1999 WL 1246925 (Tex.

App.—San Antonio Dec. 22, 1999, pet. ref’d); Rivera v. State, Nos.

04-98-00186-CR & 04-98-00187-CR, 1999 WL 1246934 (Tex. App.—San

Antonio Dec. 22, 1999, pet. ref’d); Vasquez v. State, Nos. 04-98-00245-CR,

04-98-00246-CR, 1999 WL 12469321 (Tex. App.—San Antonio Dec. 22, 1999,

pet. ref’d).

III. Habeas Proceedings Part 1: The 11.073 Claim

All four women filed identical applications for post-conviction relief on the

basis of new science and actual innocence. Judge Mary Roman heard the

Article 11.073 new-science claim. This claim was based on Dr. Kellogg’s

recantation of the core of her trial testimony: that V.L.’s scarred hymen

indicated penetration.

The State and Applicants submitted agreed findings and a conclusion that

Applicants were entitled to Article 11.073 relief based on having met the Article

11.073 standard. The findings recognized that new scientific studies within the

field of pediatrics–showing that while injured hymens do heal, they do not leave

scars in pubertal and prepubertal girls–contradicted the medical testimony Mayhugh et al–13

presented at the trials. Under the current scientific knowledge, and upon

review of the original photographs taken during the sexual assault

examinations, there were, in fact, no physical signs of abuse. The findings on

the joint trial cases, were, in part

• Dr. Kellogg recognizes that if the medical science in this area (as presented in Dr. McCann’s study published in 2007) had been available to her in 1997 or in 1998, as an expert in the field of child sexual abuse she "would not have testified that the finding was indicative of trauma to the hymen."

• The only scientific evidence before the jury that a sexual assault occurred was Dr. Kellogg’s original trial testimony that she observed a “scar” on V.L.’s hymen that was the result of “a tear that had healed.”5

• Dr. Kellogg testified that this medical finding was consistent with the sexual abuse V.L. described and "vaginal penetration" with some unknown object.

• At trial, the State relied heavily on Dr. Kellogg’s expert testimony to establish first, that the crime as alleged, in fact occurred, and second, to corroborate the complaining witness’s testimony.

• Dr. Kellogg's scientific testimony of V.L.'s "hymenal scar," her physical findings and her expert opinions and conclusions derived from her physical findings, corroborated V.L.'s trial testimony that she was sexually abused by Applicant[s].

• Although Dr. Kellogg did not testify to finding a "hymenal scar" during S.L.'s sexual assault exam, S.L. and V.L.'s testimonies were so

5 Although Dr. Kellogg did not expressly recant her testim ony about S.L.’s physical exam , the parties and courts appear to agree that her testim ony about the “redness” was non- consequential. As noted by Applicants, Dr. Astrid Heger, a nationally respected and recognized expert and colleague of Dr. Kellogg's, reviewed the evidence, testim ony, and photographs and concluded that she could say “to a m edical certainty, that neither V.L. nor S.L. showed any physical indicators of past physical traum a to their hym ens or any other part of their sexual organs. Specifically, the Septem ber 28, 1994 photographs showed that both S.L. and V.L., as of that date, had perfectly norm al hym ens, with no physical indications of past traum as whatsoever.” Mayhugh et al–14

inextricably intertwined that Dr. Kellogg's scientific testimony undoubtedly corroborated S.L.'s testimony. Due to this connection, it is also reasonable to believe that Dr. Kellogg's scientific testimony factored into the jury's evaluation of S.L.'s sexual assault exam, albeit deemed "normal."

• There is a reasonable probability that the outdated medical testimony concerning the "hymenal scar" was indicative of penetrating trauma to the hymen contributed to the jurors’ belief that the offenses did occur.

The agreed conclusion was that “more likely than not had this newly available,

relevant scientific evidence regarding hymenal injuries been presented at trial,

Applicant[s] would not have been convicted of the two counts in the

indictment[s].”

Nearly identical agreed findings and conclusions were made in Elizabeth

Ramirez’s case. Judge Roman accepted and signed the findings and

conclusions, recommending that relief be granted on Applicants’ Article 11.073

claims. These findings are supported by the record, and we hereby adopt

them. We, therefore, grant habeas corpus relief on Applicants’ claims that,

more likely than not, they would not have been convicted had the newly

available scientific testimony been presented to the jury. The remaining claims

of actual innocence were referred to Judge Pat Priest, who had presided over

the joint trial.6

IV. Habeas Proceedings Part 2: The Actual-Innocence Claim

A two-day evidentiary hearing was held on the Applicants’ actual-

6 The late Judge Mike Machado had presided over Elizabeth Ram irez’s individual trial. Mayhugh et al–15

innocence claims. At this hearing, Rosemary Camarillo testified about her

difficulties with her ex-husband, Javier, regarding their children. According to

Rosemary, Javier pulled a gun on her and threatened to kill her during an

argument after she and her kids had moved to Colorado. All of the children saw

the incident. During that same weekend, Javier took their three children back

to San Antonio over Rosemary’s objections. That incident led to a custody

battle.

To gain leverage in the custody dispute, Javier made false accusations

that a man in Colorado, whom the girls had never been left alone with, had

sexually assaulted the girls. Javier also made a false accusation that a non-

existent 10-year-old boy in Colorado had sexually assaulted S.L. That

accusation led to a police report and the examinations of the girls in 1992, but

the investigation was ultimately dropped. According to Rosemary, Javier and

his mother, Serafina, had also made accusations against others about sexually

assaulting children from Javier’s other relationships. Those allegations were

also false; one turned out to be based on diaper rash.

Rosemary stated that she has always believed her sister to be completely

innocent of these charges and has never known her sister to possess or talk

about having a gun. She testified that S.L. confirmed that when she came to

live with her as an adult, telling her, “I know that nothing happened, you know,

with my Aunt Liz and her friends . . . . all the memories that I have is memories Mayhugh et al–16

of good things that we did together, where she would take us shopping, she

would take us to eat, her and her friends. We would go to the park. They

would take us swimming. . . . I don’t remember anything bad happening to us.”

S.L., twenty-seven years old at the time of the hearing, fully and

completely recanted her claims of sexual abuse and explained how the false

allegations originated, how they evolved, and how they were encouraged. She

explained that she remembered her mom and dad fighting over her and her

sister and her brother, Max, when they were in Colorado, and that the “cops

came out.” She could remember visiting the apartment of her Aunt Liz with her

sister when they were small and that they liked going there to visit. She said

that the allegations against her aunt and the other women arose when her

grandmother saw her, her sister V.L., and her female cousin playing a game.

As S.L. put it, “Me and my sister and cousin were in the room playing,

and I was pretending to drive a car. And my sister V.L. and my cousin were in

the back” pretending to be mom and dad and they were kissing, “using

tongues.” Their grandmother saw them and started screaming at them. Javier

was called. According to S.L., they were actually mimicking behavior they had

seen their father engage in with other women in front of them. But when she

told her father this, he insisted that she learned it from watching her lesbian

aunt.

S.L. testified at the habeas hearing that she heard Javier yell at V.L., Mayhugh et al–17

saying, “You know your aunt did something to you, you know your Aunt Liz did

something to you, you just need to be honest, what did she do, who showed

you how to kiss, who showed you how to make out like that.” S.L. stated that

they were afraid of going against Javier because if they did so, he would hit

them.

She explained that she was never in the apartment alone with all of these

Applicants. She said that the first time she ever saw Anna Vasquez was when

a police officer “pulled out a book, and asked us to pick out one of the ladies

that touched us. And we–I'm going to say ‘I,’ pointed out the wrong lady. And

then he tells me no, and shows me the picture.”

She stated that, from the time Javier told them that something happened

to them through the medical examination and the police report, she and V.L.

were coached on what to say. If they got the story wrong, Javier would strike

them. And after the trials, Javier never allowed them to talk about their aunt

being in prison. “One time I had asked him about it. And I said, what exactly

happened, and why is it they’re there. And he told me to shut up and never

bring it up again.”

According to S.L., Javier was an abusive father, and when she was

fourteen, she tried to commit suicide. She was put in treatment. After a few

weeks she moved to a group home. She never moved back in with Javier. At

nineteen, she told her counselor that she had never been sexually assaulted, Mayhugh et al–18

and her counselor urged her to do the right thing and come forward. She said

that she had hesitated because she was concerned about getting in trouble for

not having told the truth in court. S.L. talked to Javier on the phone to tell him

that “I was going to come and speak to somebody about the case, because I

don’t remember it happening . . . . And when I did tell him that, he told me if

I did that, that he was going to hit me where it hurt.” That same year, 2012,

he accused her of being a bad mother and attempted to use the courts to take

her children away, though his effort failed and she ultimately kept her children.

Finally, S.L. addressed her sister’s claims of abuse. According to S.L.,

when she was about thirteen, she talked to V.L. about why their Aunt Liz was

in prison. “I told her, I don’t think anything ever happened to us. And she said

it may not have happened to you but it happened to me.” She last talked to

V.L. about three years prior to the hearing. V.L. did not testify at the hearing.

At the hearing, Applicants also presented testimony from Maria Molett,

the executive director of the Counseling Institute of Texas. Molett performed

psychosexual evaluations on Elizabeth, Cassandra, and Kristie, and looked at

the records of the person who did the evaluation on Anna. She concluded that

she never would have accepted the women for sex-offender treatment because

“these people are not sex offenders” and so there would be nothing to treat.7

7 Though Ms. Mollett opinions were based in part on polygraphs, she testified that her opinions w ere also based upon research-based risk-assessm ent tools used in the practice of assessm ent and treatm ent of sex offenders. Mayhugh et al–19

All four Applicants testified at the hearing–as they had at their respective

trials–that they are innocent of the charges. Applicants also introduced

testimony from forensic psychologist, Dr. Alexandria Doyle, whose expertise is

in evaluating claims of sexual assault and recantations of such claims. She

opined that the original claims were fantastic–nothing similar to what is typically

seen in true child sexual-abuse cases–but that the recantation was credible.

At the end of the hearing, Applicants argued to the habeas court that,

given all the information now known and the extremely weak and unreliable

nature of the only evidence left to support the convictions, no reasonable juror

could find Applicants guilty beyond a reasonable doubt. The State did very little

throughout the whole hearing, asking very few questions on cross-examination

and declining to put on any evidence. Significantly, the State did not

recommend denying or granting relief on actual innocence, but rather stated

that, now that it is known that Dr. Kellogg’s testimony in the trials in the 1990's

was wrong, what is left is “purely the credibility of the witnesses, which is for

the Court to determine.”

IV. A. The Herrera Standard

This Court recognizes two types of “innocence” claims. The one at issue

in this case—a Herrera claim—is a substantive claim in which the person asserts

a bare claim of innocence based solely on newly discovered evidence. Ex parte

Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996); Ex parte Brown, 205 Mayhugh et al–20

S.W.3d 538, 544 (Tex. Crim. App. 2006).

Herrera claims are evaluated on the assumption that the trial that

resulted in conviction had been error-free. In such a case, when a petitioner

has been tried before a jury of his peers, with the full panoply of protections

that our Constitution affords criminal defendants, it is appropriate to apply an

extraordinarily high standard of review. Ex parte Franklin, 72 S.W.3d 671, 676

(Tex. Crim. App. 2002). Thus, to succeed in an actual-innocence claim, the

applicant must show 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. Brown, 205 S.W.3d at

545; Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002).

An applicant must also prove that the evidence he relies on was not

known to him at the time of trial and could not be known to him even with the

exercise of due diligence. Brown, id. Although many actual-innocence cases

are based on a single piece of new evidence such as DNA or the recantation of

a victim or witness, we have made clear that “multiple pieces of newly

discovered evidence” can together make a meritorious case for relief. Ex Parte

Miles, 359 S.W.3d 647, 671 (Tex. Crim. App. 2012). In practice, we have

highlighted certain pieces of new evidence and discussed whether the new

evidence persuasively establishes innocence when comparing it to the evidence

establishing guilt. See e.g. Ex Parte Navarijo, 433 S.W.3d 558, 568 (Tex. Crim. Mayhugh et al–21

App. 2014) (highlighting pieces of evidence and evaluating their persuasiveness

before denying an actual-innocence claim). Ultimately, we look to whether the

totality of the new evidence of innocence unquestionably establishes that a jury

would not have found the defendant guilty in light of the new evidence when

weighed against the old evidence establishing guilt. Brown, 205 S.W.3d at 545

The evidence presented in support of a Herrera innocence claim must be

“affirmative.” Franklin, 72 S.W.3d at 678. Once the applicant provides such

evidence, it is appropriate for the habeas court to proceed with the weighing of

new evidence tending to show innocence against the evidence of guilt produced

at trial. The habeas court then makes findings of fact and conclusions of law,

and a recommendation to this Court.

While we generally defer to findings of fact when the trial court is in a

better position to determine witness credibility, we nevertheless can exercise

our authority to make contrary or alternative findings and conclusions when our

independent review of the record reveals that the trial judge’s findings and

conclusions are not supported by the record. Ex parte Reed, 271 S.W.3d 698,

727 (Tex. Crim. App. 2008); see also Ex parte Weinstein, 421 S.W.3d 656, 664

(Tex. Crim. App. 2014) (citing Ex parte Chavez, 371 S.W.3d 200, 207 (Tex.

Crim. App. 2012)), Ex parte Flores, 387 S.W.3d 626, 634-35 (Tex. Crim. App.

2012). Significantly, we apply a de novo standard of review to the legal

question, “Does the applicant’s new evidence, viewed in the light most Mayhugh et al–22

favorable to the habeas court’s factual findings and credibility determinations,

actually prove, by clear and convincing evidence, that a jury would acquit him?”

See Rivera v. State, 89 S.W.3d 55, 59 (Tex. Crim. App. 2002). In answering

this question, we consider the habeas court’s conclusions of law as well as his

recommendation, but it is nonetheless a legal conclusion that this Court, as the

final decision maker in habeas applications, must make. Reed, 271 S.W.3d at

727.

Although courts must carefully examine claims of actual innocence—even

one made many years after the alleged crime—recantations in sexual assault

cases are not rare. Such post-conviction claims should not be accepted without

close scrutiny nor, generally, without strong corroboration by independent

evidence. Ex parte Thompson, 153 S.W.3d 416, 420-21 (Tex. Crim. App.

2005) (granting relief on the basis of actual innocence where complainant’s

recantation was corroborated by normal medical examination results and

evidence of manipulated allegations of abuse). For instance, even in a case

where the trial court found a complaining witness’s recantation credible we have

nevertheless denied relief to an applicant convicted of aggravated sexual

assault of a child because of “(1) the lack of detail in the complainant’s

recantation testimony at the habeas hearing and the jury’s rejection of evidence

of the complainant’s pre-trial recantation, and (2) the existence of inculpatory

medical testimony that has not been otherwise explained by the complainant’s Mayhugh et al–23

recantation.” Navarijo, 433 S.W.3d at 568. To support a finding of actual

innocence, a recantation must be direct, specific and certain. Franklin, 72

S.W.3d at 678; Brown, 205 S.W.3d at 547.

V. Applicants Presented Substantial Credible and Persuasive Evidence Establishing Their Innocence

This Court agrees with Applicants, the State, and Judges Roman and

Priest that the newly available scientific evidence establishes, by a

preponderance of the evidence that Applicants would not have been convicted.

The question remaining is whether the additional, newly available evidence

when compared to the evidence establishing guilt moved this case to the next

level, that is, where no rational juror would have convicted Applicants. The

habeas court made several findings that suggest he found S.L.’s, Elizabeth’s

and Rosemary’s testimony at the habeas hearing credible, as well as the

testimony from the expert that none of the Applicants fit the profile of a sexual

offender–including the following:

• During the time that Elizabeth Ramirez lived with the Limon family, a very bad relationship developed between Elizabeth Ramirez and Javier Limon. Elizabeth Ramirez testified at the writ hearing that Javier made sexual advances toward her that she rejected, and when she became pregnant by another man, Javier wanted to serve as father figure for the child, which she also rejected. Elizabeth Ramirez did not tell Rosemary Limon about Javier’s advances.

• Since the trial, Javier and Rosemary have divorced. Since the divorce, Javier has made false allegations that a Mr. Aguirre in Colorado, as well as a ten-year-old boy in that state, had sexually assaulted these two complainants. Their mother lost contact with these complainants because Javier was "difficult with the girls,” who told their mother they wanted Mayhugh et al–24

nothing to do with him. This is what occasioned the girls being in Colorado with their mother, but he went there, pulled a gun on their mother (who took it away from him), and brought the girls back to San Antonio via Greyhound bus.

• S.L. asserts that Javier was abusive to all the children and that it was Javier who instigated these complaints. All of the Applicants have expressed that their sexual orientation is toward members of the same sex, and when Javier saw the complainants and a female cousin kissing each other, he assumed that they had done that due to the influence of "Aunt Liz" (Elizabeth Ramirez) and her friends (the other Applicants). Javier and his mother, Serafina talked to the complainants, suggesting that the girls had seen improprieties at Aunt Liz’s house and that Aunt Liz and her friends had behaved inappropriately with the girls.

• S.L. considered coming forward with her recantation when she was 19, after she informed a counselor that her testimony had been untruthful, but Javier told her she’d be prosecuted for lying and go to prison, so she did not.

• Before S.L. did come forward with her recantation, Javier told her he would "hit her where it hurts" if she did so. When she did so, Javier complained against her to Child Protective Services regarding her parenting of her own three children.

• Ramirez, Rivera and Mayhugh were clinically assessed (psychosexually evaluated) by the Executive Director of the Counseling Institute of Texas, Maria Molett, who reviews sexual offenders for the State of Texas to determine whether they require civil commitment, and each was determined not to meet the profile of a sexual offender. Anna Vasquez was not seen by Maria Molett, as she had been paroled, but a psychosexual evaluation of her by others employed in a similar capacity was reviewed by her, and that evaluation suggests that she, too, does not meet the criteria.

The above findings of the habeas court are supported by the record.

Despite these findings, the habeas court did not recommend granting

relief on actual-innocence grounds because, though S.L. recanted, V.L. had not,

and her testimony would still be available at trial for the jury to weigh against Mayhugh et al–25

the recantation evidence. Among the trial court’s conclusions are the

statements that

* “There is no hard scientific evidence (such as DNA or the like) which scientifically establishes the guilt or innocence of any of the Applicants.”

* “There are only two eyewitnesses, and one of them continues to assert the truth of her trial testimony.”8

* “The credibility of these two witnesses is an issue for the jury to decide, and no scientific evidence conclusively settles the matter.”

But in this regard, the habeas court appears to have conducted a legal-

sufficiency analysis. The legal sufficiency maxims–“a child’s testimony alone is

sufficient to support a conviction for sexual assault,” “the jury is the sole judge

of credibility and weight to be attached to the testimony of witnesses,” “the

fact-finder is free to believe all, part, or none of a witness’s testimony”–echo

within these conclusions. However, this is not a direct appeal.

In Elizondo, this Court deliberately stayed away from the issue of legal

sufficiency of the evidence in actual-innocence cases because no one would

ever be found actually innocent on habeas review if the original trial evidence

was legally sufficient to support guilt. As we stated in Elizondo,

On reflection, we now acknowledge that Jackson is not a suitable standard for describing the applicant’s burden of proof in a collateral proceeding where he does not attack the rationality of a factfinder’s verdict. On the other hand, Justice Blackmun’s formulation, because it focuses on the applicant’s burden of proof, directs the habeas court, as factfinder, to weigh the newly

8 Applicants note that this conclusion is based, solely, on the fact that, when V.L. was 15, she told S.L. that the abuse “m ay not have happened to you but it happened to m e.” Mayhugh et al–26

discovered, exculpatory evidence against the inculpatory evidence offered at trial for the purpose of determining whether it affirmatively shows the applicant to be innocent. Thus, Justice Blackmun continues:

Because placing the burden on the petitioner to prove innocence creates a presumption that the conviction is valid, it is not necessary or appropriate to make further presumptions about the reliability of newly discovered evidence generally. 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. The court then should weigh the evidence in favor of the prisoner against the evidence of his guilt. Obviously, the stronger the evidence of the prisoner’s guilt, the more persuasive the newly discovered evidence must be.

This is a far more fitting approach to the resolution of factual issues, focusing on the burden and quantum of proof required for an affirmative finding in the first instance rather than on the standard associated with a deferential review of that finding. Accordingly, we now hold that, in the exercise of our postconviction habeas jurisdiction under article 11.07 and 11.071 of the Code of Criminal Procedure, our job is not to review the jury’s verdict but to decide whether the newly discovered evidence would have convinced the jury of applicant’s innocence.

Ex parte Elizondo, 947 S.W.2d 202, 207 (Tex. Crim. App. 1996) (quoting

Herrera v. Collins, 506 U.S. 390, 443–44 (1993)(Blackmun, J., dissenting)).

This “weighing” is why a guilty plea does not foreclose an actual-innocence

claim. Tuley, 109 S.W.3d at 392 (“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.”). Mayhugh et al–27

The habeas court appears to have concluded that, because V.L.’s

testimony would still be available at trial, it would be up to a jury on re-trial to

resolve conflicts between V.L.’s testimony and S.L.’s recantation and determine

which is more credible. But that is the same analytical framework we rejected

in Ex parte Navarijo. 433 S.W.3d at 571-72. There, we denied relief because

the habeas court simply performed a one-to-one comparison between the new

recantation and the eyewitness testimony without considering the strength of

the State’s case as a whole. Id. The same can be said of the habeas court’s

analysis in this case.

Indeed, we have previously granted relief on an actual-innocence claim

when newly available and credible recantation evidence undermined testimony

that would nevertheless have been legally sufficient under the one-eyewitness

rule. Thompson, 153 S.W.3d at 420. In Thompson, the defendant was charged

with sexual assault of his daughter, and the only direct evidence of the sexual

assault at issue that the jury could rely upon was the testimony of the eight-

year-old complainant. Id. at 418. Because there was no physical evidence of

assault, the State corroborated the complainant’s testimony with the

complainant’s mother’s testimony that she became suspicious of the defendant

after the complainant came home from time with her father wearing a torn

dress. Id. at 419.

But at the habeas hearing, the defendant presented a great deal of Mayhugh et al–28 evidence involving the on-going custody dispute between the defendant and his

ex-wife at the time of the accusations. Id. The complainant herself, a twenty-

year-old woman, testified that the sexual abuse never happened, and that her

mother had pressured her to testify falsely. Id. The complainant’s mother

admitted that she had physically abused her daughter in the past, though she

denied there being any custody dispute at the time of the allegations. Id. She

admitted that her daughter had originally said that the dress had been torn on

a bus, and the church bus driver corroborated this by testifying that she had

witnessed the complainant tearing her dress on the bus. Id. Finally, the

defendant presented testimony from an expert on interviewing techniques and

recantations in child sexual-abuse cases who opined that the complainant’s

recantation was valid. Id. at 420. After the consideration of the significant

impact that all this evidence would have upon the State’s case, we granted

habeas corpus relief because no reasonable juror could have found the

defendant guilty.

Though the math may become trickier when, as in this case, there is only

one recantation between two accusers, the ultimate calculus should not change.

Here, the evidence presented by the Applicants has eroded the persuasiveness

of the State’s already weak cases just as surely as the evidence presented at

the habeas hearing in Thompson did. In this case, V.L. and S.L.’s interlocking

accusations were presented to both juries via Detective Matjeka, Serafina

Limon, Dr. Kellogg and the girls themselves–V.L. at Elizabeth’s trial, and both Mayhugh et al–29 girls at the joint trial. The accounts were so intertwined that the credibility of

one witness’s version rested on the credibility of the other witness’s version of

events. Both victims testified that they were either assaulted together or one

right after the other. S.L.’s habeas testimony that nothing happened cannot be

reconciled with V.L.’s trial testimony; a fact-finder could not rationally believe

both complainants.9

A. S.L.’s Recantation Is Credible and Corroborated

Notably, S.L.’s recantation is direct, detailed, certain, and strongly

corroborated. See Thompson, 153 S.W.3d at 420-21. Her original testimony,

like V.L.’s, was not strong to begin with, and her recantation completely

undermines her trial testimony. S.L. testified in detail regarding the events that

were transpiring at the time that the false accusations came to light, and she

explained the underlying motivations that compelled her and her sister to

fabricate those allegations. Cf. Franklin, 72 S.W.3d at 678 (actual innocence

not shown where child victim recanted testimony that she had never had sex

with any other man (other than Franklin); the evidence “calls into question her

veracity in general, but only collaterally affects her accusation against

applicant”); Cf. Brown, 205 S.W.3d at 547 (actual innocence not proven where

9 It is worth noting that the habeas court has already reached a sim ilar conclusion with regard to the im pact of Dr. Kellogg’s “recantation.” As discussed above, the habeas court found that the testim ony of both com plainants was so inextricably intertwined that Dr. Kellogg’s testim ony corroborated the evidence supporting the crim es against both girls. W ithout that corroboration, the habeas court held, that the State’s case was weakened enough that it was “m ore likely than not” that a rational jury would have acquitted the Applicants. Mayhugh et al–30 child victim claimed a lack of memory and made a global denial of sexual

abuse). Rather than provide information that would have merely undermined

her credibility, S.L. provided affirmative evidence that the assaults never

occurred. In effect, S.L. not only recanted her own trial testimony, she also

provided credible eyewitness evidence exonerating the women for the crimes

against V.L.

The circumstances and timing of the recantation were not suspicious. As

pointed out by Dr. Doyle, the first person S.L. came forward to about her

recantation was “a third party who doesn't have a dog in the show.” It was

only when she finally found herself in a comfortable, safe setting that she could

deal with her own feelings and thoughts. Cf. Brown, 205 S.W.3d at 548 (“the

timing of C.B.'s recantation is, at least on its face, highly suspicious. It was

only after applicant's guilt was adjudicated and he was sentenced to twelve

years in prison—more than three years after the alleged offense—that C.B.

suddenly told her mother that she had been lying all along”).

The recantation is corroborated by Rosemary Carrillo’s testimony that

Javier, with the occasional assistance of his mother, Serafina, had engaged in

a pattern of involving the children in false abuse allegations to gain leverage in

legal disputes. See Thompson, 153 S.W.3d at 419 (noting that new evidence

of an ongoing custody dispute at the time of the accusations undermined the

strength of the State’s case); see also Hammer v. State, 296 S.W.3d 555, 569-

70 (Tex. Crim. App. 2009) (noting that a history of making prior false Mayhugh et al–31 allegations against others could be probative evidence of whether allegations

at issue in the case are false under the doctrine of chances). Moreover, S.L.’s

testimony, credited by the trial court, establishes that Javier repeatedly

threatened S.L. with prison when she first tried to come forward with her

recantation. This corroborated S.L.’s account that her father had used threats

to manipulate her into making the sexual assault allegations in the first place,

and suggested a reason why V.L. had not recanted her testimony.

Additionally, S.L.’s recantation is consistent with the new medical

testimony establishing that there was no physical evidence of sexual assault.

Thompson, 153 S.W.3d at 420 (noting that recantation testimony was

consistent with the lack of physical evidence of abuse from the physical

examination); Cf. Navarijo, 433 S.W.3d at 571 (clear and convincing standard

not met in light of the still-standing medical evidence suggestive of sexual

abuse that was presented at trial). The combined force of S.L.’s credible

testimony and the new scientific evidence that there are no physical signs of

sexual assault distinguishes this case from the situation presented in Navarijo

where the credible recantation testimony remained contradicted by viable

medical evidence that a sexual assault had occurred. Navarijo, 433 S.W.3d at

570-71. And, as we have already held, the Applicants would not have been

convicted of these offenses had they been allowed to consider the newly

available, relevant scientific evidence regarding the victim’s injuries.

Finally, Applicants presented expert psychological evidence to further Mayhugh et al–32 explain why S.L.’s recantation is both credible and very persuasive. In deciding

whether to grant habeas claims of actual innocence, this Court has considered

the testimony of experts who have training in the detection of false sexual-

abuse allegations and false recantations. C.f. Ex parte Harleston, 431 S.W.3d

67, 79, 88 n. 11 (Tex. Crim. App. 2014) (denying relief on an actual-innocence

claim, in part, because the testimony by K.D., the recanting witness at the live

habeas hearing, was “internally inconsistent and present[ed] implausible

explanations” of why K.D. would have fabricated sexual-assault allegations

against Harleston, and in part based on the State’s evidence at trial that

included “a number of witnesses who supported the circumstances of K.D.’s

sexual-assault outcry as genuine.”). Here, the Applicants’ psychological experts

detailed their reasons for finding S.L.’s recantation significantly more credible

than the trial testimony that was introduced in this case.

Specifically, Dr. Doyle, testified as to her belief that S.L.’s recantation

testimony was credible both in terms of the substance of the recantation and

in the manner in which it came to light. She explained that psychological

studies have shown that telling a child a false story repeatedly eventually taints

the child’s memory. Dr. Doyle also explained that this could have been

exacerbated by the investigation itself. At the time of S.L.’s interview by police,

there was little research into effective interviewing techniques for children who

claim to have been sexually abused. Unlike more contemporary investigations

into child abuse allegations, in which a trained forensic interviewer asks a child Mayhugh et al–33 open-ended questions in a one-on-one interview, Dr. Doyle noted that S.L. had

sometimes been interviewed in front of her father and alongside her sister.

These techniques, according to Dr. Doyle, are associated with inducing

erroneous responses and increased the likelihood of a child acquiescing to

misinformation provided by the interviewer or the parent. Dr. Doyle’s expert

testimony further supports the determination that S.L.’s recantation is both

persuasive and credible while simultaneously bringing V.L.’s trial testimony

further into question.

Additionally, Applicants presented unchallenged testimony from the

current executive director of the Counseling Institute of Texas, Maria Molett,

that none of the Applicants had ever engaged in any behavior similar to the

allegations in this case, further corroborating S.L.’s testimony that the assaults

never occurred. Molett testified that she had previously spent ten years as a

member of the governor-appointed Council on Sex Offender Treatment, which

is the organization that makes determinations and policies regarding civil

commitment of sexually violent predators. She explained that she had

determined who could become a licensed sex-offender-treatment provider for

the State-sponsored sex-offender-treatment programs in her capacity as chair

of the education committee as well as a member of the Standards and Practice

committee. She also noted that she is a licensed sex-offender-treatment

provider.

Molett recounted that she had conducted psychosexual evaluations on Mayhugh et al–34 three of the Applicants, Liz, Cassie, and Kristie, all of whom were still in prison

when these allegations were being investigated. As part of this evaluation, she

reviewed all of the records of the offenses for which the Applicants were

convicted. She did a risk assessment, a Hare Psychopathy, and community

supervision risk assessment level of service inventory. She also testified that

she utilized polygraph tests as a means of corroborating the information given

to her by each Applicant during these evaluations. According to Molett, each

Applicant she tested had passed the polygraph tests. She also explained that

though she did not perform an evaluation of Anna, she examined the records

and the test results from the person who had evaluated Anna. Molett concluded

that based upon these evaluations, none of the four women were sex offenders

and none of them had engaged in deviant sexual behavior. As mentioned

above, the habeas court expressly found Dr. Mollett’s opinion evidence credible.

Applicants urge this Court to not only credit Molett’s expert opinion

testimony relied upon by the habeas court, but also the exculpatory results of

the polygraph tests themselves as proof of their innocence. We have previously

held that polygraph results themselves are inadmissible because they are

unreliable. Leonard v. State, 385 S.W.3d 570, 577 (Tex. Crim. App. 2012)

(“For more than sixty years, we have not once wavered from the proposition

that the results of polygraph examinations are inadmissible over proper

objection because the tests are unreliable.”). In the context of an actual-

innocence claim, we have refused to consider them as evidence of innocence. Mayhugh et al–35 Miles, 359 S.W.3d at 662 n. 14 (“Because polygraph exams are not admissible

evidence, we do not rely on these results as evidence of Applicant’s

innocence.”). And while we have acknowledged that Rule 703 allows an expert

to base his or her opinion on otherwise inadmissible evidence, we specifically

declined to allow this rule to be used to admit polygraph results by claiming that

the results themselves were necessary to support the expert’s opinion.

Leonard, 385 S.W.3d at 582. As we explained in Leonard, Rule 703 cannot be

used a conduit for admitting opinions based on “scientific, technical, or other

specialized knowledge” that would not meet Rule 702's reliability requirement.

Id. Though we seemed to leave open the possibility that an expert could base

his or her opinion on a polygraph result, we refused to admit the results of a

polygraph test under the guise of an expert’s opinion that was based solely

upon the results themselves.

We do not need to rely upon the polygraph results themselves in these

cases to determine whether the Applicants unquestionably established their

innocence. First, it would require this Court to overrule existing law. Applicants

are trying to do exactly what we said the State could not do in Leonard, use

polygraph test results to prove the truth of those results under the guise of

expert opinion testimony based on those results. Applicants have not shown

that our previous precedent was wrongly decided or unworkable.

Second, the habeas corpus court clearly credited Molett’s opinion that the

Applicants in this case were not sex offenders, that they had never engaged in Mayhugh et al–36 deviant sexual behavior, and that they were not at any risk to engage in any

such behavior in the future. Molett’s opinion was based upon a whole series of

evaluations. The polygraph results were used only to corroborate the

information provided by the Applicants in some of those tests as part of an

overall treatment evaluation. 22 Tex. Admin. Code § 810.64(c)(18)

(“polygraph examinations shall be used as a part of a comprehensive treatment

program”). Even if the results themselves were credited, they would only

provide, at most, incremental proof of the Applicants’ claims beyond what the

habeas court has already credited. Given how strong the new evidence of

innocence is when compared to how weak the remaining evidence of guilt is,

Applicants’ claims for relief simply do not turn upon the polygraph results

themselves. If the results of lie-detector tests were truly the lynchpin of the

Applicants’ claims, it would be difficult to argue that Applicants have carried

their Herculean burden to prove their claim of actual innocence. With a number

of convictions in Texas being overturned due to the fact-finder’s reliance upon

“junk science,” we see no reason to open the door to consideration of

historically unreliable polygraph results themselves just because those results

might either enhance or discredit exoneration claims.

In these cases, it is unnecessary to do so. Applicants have presented

significant new evidence that unquestionably establishes their innocence. S.L.

not only established that the offenses did not occur through her credible

recantation testimony, she explained in detail how her father forced her and her Mayhugh et al–37 sister to make the false allegations to the police in the first place. S.L.’s

recantation is corroborated by other documented instances of S.L.’s father

fabricating allegations of abuse in order to manipulate his wife in an ongoing

custody dispute. Dr. Doyle’s expert testimony regarding false claims of abuse

further corroborated S.L.’s recantation, and Maria Molett’s expert opinion

supports the Applicants’ claims that they are not sex offenders and the alleged

behavior is completely inconsistent with their psychosexual histories and

psychological evaluations. All of this evidence combines to paint a clear and

consistent picture of the Applicants’ innocence.

B. The Remaining Evidence of Guilt is Exceedingly Weak

In contrast, the evidence relied upon to convict the Applicants paints a

fairly inconsistent picture establishing the Applicants’ guilt. The evidence

presented at the two trials set forth multiple different versions of how the

Applicants were alleged to have abused V.L. and S.L. during the time they

visited their Aunt Liz’s apartment. In one version both complainants were

together in the same room during the assaults, but in another the complainants

were not in the apartment together because S.L. was locked outside while the

Applicants purportedly assaulted V.L. inside the apartment. At one point, S.L.

claimed she saw V.L. leave the bedroom to take a shower after allegedly being

assaulted. In another, V.L. left the bedroom to simply go outside and play

immediately after the alleged sexual assault. Sometimes it was a gun to V.L.’s

head when she was on the phone to her father, others it was a knife. The Mayhugh et al–38 stories also vary as to the claims about who held the complainants down and

who actually committed the sexual assaults. None of the versions are

consistent regarding when these two events allegedly occurred during the week

in question. These material conflicts are so great that it is difficult to tell which

version of events the jury believed.

Most importantly, many of the details of these stories are simply

implausible. As Dr. Doyle, explained in the habeas hearing, these stories simply

did not make sense. Dr. Doyle could not find one piece of evidence or one

statement consistent with what one would expect in a true sexual-abuse

allegation. According to Dr. Doyle, the events described were more like a

fraternity hazing without any of the elements of sexual abuse. For example, Dr.

Doyle explained that unlike a typical family sexual-abuse scenario there was no

evidence in this case of grooming or an attempt to isolate the children. Having

interviewed hundreds of people who had been sexually abused, Dr. Doyle

testified that she had never seen anything that came close to the alleged

behavior in this case. That is why she believed that this story was a generated

story; it did not hang together. S.L.’s testimony did. The State did not

challenge this testimony.

Given the implausible and contradictory nature of the allegations, Dr.

Kellogg’s medical testimony was crucial to the case. It was the only piece of

evidence that could show a crime had ever occurred. Not surprisingly, this

opinion testimony was central to the State’s theory of criminal liability. From Mayhugh et al–39 opening argument, to closing argument, there were two themes in both trials:

the girls’ stories were inconsistent, but that didn’t matter in light of Dr.

Kellogg’s testimony.

At Elizabeth’s trial, the prosecutor dealt with the coming inconsistences

head-on stating, in an opening argument (that was made before it was known

that S.L. would not testify), that “they’re not going to be able to remember

everything. And they may not be able to keep everything perfectly straight, but

they’re going to do their best to tell you what happened.” But “you will hear

from Dr. Nancy Kellogg. . . . who has done it, if not thousands, at least

hundreds and hundreds of rape examinations on children. . . And she will talk

to you about . . . the medical finding which [was] consistent with the story that

V.L. told about how Liz–Aunt Liz and her friends raped her.”

V.L. went on to testify in that trial that, immediately after the first

assault, her father called and she answered the phone. Liz then pulled out a

gun and pointed it to her head and said that “if I told anybody that she was

going to kill me and my family.” She was sure “100% sure” it was Elizabeth.

Dr. Kellogg testified that, in taking the history from the girls, V.L. told her

that both Liz and Anna had guns. Serafina, the outcry witness, testified that

V.L. told her that “one of the girls had the knife and had told them–threatened

them that they were going to do something to their dad and me.” And in her

statement to police, V.L. said that it was Cassandra who made the threat to kill.

V.L. was cross-examined about these inconsistences, as well as ones Mayhugh et al–40 relating to whether the two assaults happened on sequential or non-sequential

days, whether or not S.L. was present during the outcry to Serafina, whether

Elizabeth drank nothing or half a bottle of Tequila, whether V.L. herself was

made to drink wine with soda or nothing at all, whether S.L. was in the living

room playing during the first assault or whether she was locked outside,

whether they were made to go back outside to play after those assaults or

whether they stayed in the apartment, whether the four women were there the

entire week or not, whether the women were screaming at them or not,

whether liquids were inserted both days or just the first day, whether it was

Anna who took off her pants or Kristie, whether the gun was held to her head

or to both of their heads, whether S.L. was assaulted in the living room or the

bedroom, whether the first assault was in the morning or at 2 p.m., and

whether she saw tattoos and on who.

The State dismissed the inconsistencies in light of Dr. Kellogg’s testimony.

You heard lastly from Dr. Kellogg. I think Dr. Kellogg, ladies and gentlemen, interestingly enough was perhaps one of the most critical, if not the most critical, witness that you heard from. . . . It’s interesting to me that after all of the emotion and after all the technical wizardry, it’s this simple and this terrifying painful. That little tag, that scar at 3:00 o’clock, don’t ever, ever forget Dr. Kellogg’s words that scar, that healed tear is indicative not just of penetration. It is indicative of very painful penetration. Folks, we can sit here all day long and talk about demeanor and we can talk about well, the inconsistencies they had were this. The inconsistencies they had were that. But the medical, physical evidence does not lie. You can’t make that tag — you can’t make that painful tear, that painful healing, that painful scar, up. That’s why we brought you Dr. Kellogg. Mayhugh et al–41 A year later, at the joint trial in 1998, V.L. testified that it was Anna who

had put the gun to her head and her Aunt Liz who had answered the phone

after the alleged assaults. She denied that she had said, in the 1997 trial, that

it was Liz who had the gun.10 V.L. was again thoroughly cross-examined on the

variations of the facts in her accounts, including whether the Applicants were

dressed or partially undressed or fully undressed, whether she made an outcry

to her grandmother because of pressure she felt or she did so in response to

her grandmother’s questioning about how the girls were playing with dolls,

whether the door to the outside was locked with a chain lock or regular lock,

whether she talked to her father about the assaults or whether her

grandmother told their father, whether or not Kristie was there the first day,

whether or not Kristie was there the second day, and whether they were taken

home or picked up. V.L.’s inconsistencies about significant details of the

offense such as whether the defendants used a gun or a knife, who was or was

not present, and where the assault occurred are represented in this chart.

10 Serafina testified at the 1998 trial that the girls had told her about a gun, but that she had forgotten to tell the police about the gun. She said she never m entioned a knife in her 1997 testim ony. She, like V.L., blam ed the court reporter for the discrepancy. S.L. told prosecutors in 1996 that Kristie held a gun on them . Mayhugh et al–42 1994 1994 1994 1996 1997 1998

outcry to Serafina statement to statement to interview with trial trial

acc’d to Serafina Dr. Kellogg police DA

weapon “held hand real Liz had a gun and After the second After the first After the first After the first

and/or phone tight” during threat Anna had a gun assault, “Anna assault, Javier assault, Javier assault, Javier

call (statement to “and they were held the gun called, & called, V.L. called, Liz

police) pointing it at my against both of “somebody had answered & Liz answered &

head” and said if our heads and a gun and pointed gun Anna

“one of the girls had they told “they they told us not pointed it at just at V.L. pointed gun just

the knife and had would kill our to tell” what [V.L.] and told and said “if I at V.L.

told family” happened her they would told anybody

them–threatened kill her” that she was

them that they were going to kill

going to do or me and my

something to me family”

and my dad” (97 “didn’t use

trial) phone there

because Liz

gun (98 trial) disconnected

phone before

anything

happened,” so

ran next door to

call Javier

1st assault only three women all four women Kristie not all four women all four women all four women

there (statement to there; S.L. in there; S.L. in there; S.L. there; S.L. there; S.L.

police) living room living room trapped outside trapped trapped outside

during V.L.’s during V.L.’s during V.L.’s outside during during V.L.’s

all four women assault; then assault; then assault; then V.L.’s assault; assault; then

there (97 trial) called into called into called inside then called called inside

bedroom bedroom inside

2nd assault “same thing all four women all four women Kristie not Kristie not there

happened next there; assaulted there; assaulted there; “she had gone

day” simultaneously simultaneously assaulted to work or

in same room in same room simultaneously something”;

in separate assaulted

rooms simultaneously

in separate

or rooms

all four women or “She was

always there there.” Mayhugh et al–43 Although the court of appeals dismissed all the inconsistences because

none were on the “essential elements,” it did so because the essential elements

were corroborated by Nancy Kellogg’s testimony regarding the physical

evidence of sexual assault. See Mayhugh v. State, 1999 WL 1246925 at *4

(Tex. App.–San Antonio Dec. 22, 1999) (not designated for publication).

Dr. Kellogg has now recanted that testimony as scientifically unreliable.

S.L. has recanted her testimony as well, admitting that the allegations were

fabricated. Indeed, S.L. explained exactly why the girls were able to remain

consistent on those points and no others: their father would hit them if they did

not recount the story correctly. And finally, it is logically impossible to believe

any one of V.L.'s versions if one believes S.L.'s recantation. The State’s theory

of the case was that the girls were witnesses to each other's alleged abuse. If

S.L. was not abused, neither was V.L. Without Dr. Kellogg’s or S.L.’s

testimony, the State is left with an exceedingly weak case from one witness

that must stand against significant evidence of witness manipulation and

eyewitness testimony that the crimes never occurred.

Applicants have presented considerable and extremely persuasive

evidence to support their claim of innocence. The medical testimony relied

upon to secure the convictions is now known to be unreliable. One of the

complainants has not only recanted her own testimony, she has provided

eyewitness testimony that no assaults ever occurred and that she and her sister

were forced to testify falsely against the Applicants. New psychological Mayhugh et al–44 evidence corroborates Applicants’ claims that these allegations were generated

through the manipulation of the complainants’ by their father in order to gain

leverage in a custody dispute. Substantial evidence regarding a history of

claims of abuse brought forth by the complainant’s father that we now know

were equally false further corroborates the recantation evidence in this case.

And evaluations of each Applicant showing that they are not sex offenders and

have never engaged in deviant sexual behavior, further establishes the claims

of actual innocence. When this new evidence is compared to the State’s

exceedingly weak case for guilt, it is patent that the Applicants have

unquestionably established their claim that no jury could rationally find them

guilty.

VI. Conclusion

It has been suggested that the term “actual innocence” is inappropriate

because applicants who are successful when raising a claim of actual innocence

never truly prove that they did not commit the offense. But when the

presumptions are reversed, the State does not have to prove that a defendant

is definitively guilty. The State does not prove that a person has committed a

crime beyond all doubt, or even beyond a shadow of a doubt. By proving its

case at trial according to the applicable standard, the State secures the ability

to proclaim to the citizens of Texas that the person responsible for a crime has

been brought to justice, that the person is guilty. When defendants have

accomplished the Herculean task of satisfying their burden on a claim of actual Mayhugh et al–45 innocence, the converse is equally true. Those defendants have won the right

to proclaim to the citizens of Texas that they did not commit a crime. That they

are innocent. That they deserve to be exonerated. These women have carried

that burden. They are innocent. And they are exonerated. This Court grants

them the relief they seek.

Filed: November 23, 2016

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