OPINION ON RELATORS’ APPLICATION FOR WRIT OF MANDAMUS
BAIRD, Judge.
Relators, Hams County District Attorney John B. Holmes and the Texas Board of Pardons and Paroles by and through the Attorney General, seek a writ of mandamus and/or prohibition directing respondent, the Third Court of Appeals, to withdraw its order enjoining the execution of death row inmate Gary Graham. We will conditionally grant relief.
I.
A recitation of the procedural history of this case is in order. Graham was convicted of capital murder in the 182nd District Court of Harris County. Tex.Penal Code Ann. § 19.03(a)(2). We affirmed. Graham v. State, 671 S.W.2d 529 (Tex.Cr.App.1984). We denied Graham’s first application for writ of habeas corpus, Ex parte Graham (Tex.Cr.App. No. 17,568-01, delivered February 19, 1988) (not published), and Graham unsuccessfully petitioned the federal courts for relief. Graham v. Collins, 950 F.2d 1009 (5th Cir.1992) (en banc); and, Graham v. Collins, — U.S. —, 113 S.Ct. 892, 122 L.Ed.2d 260 (1993). Although we ultimately denied Graham’s second writ application, we stayed his execution pending the resolution of Johnson v. Texas, — U.S.—, 113 S.Ct. 2658, 125 L.Ed.2d 290 (1993). Ex parte Graham, 853 S.W.2d 564 (Tex.Cr.App.1993); and, Ex parte Graham, 853 S.W.2d 565 (Tex.Cr.App.1993). Our stay expired by its own terms and the Supreme Court denied certiorari. Graham v. Texas, —U.S. —, 113 S.Ct. 2431, 124 L.Ed.2d 651 (1993).
[391]*391The Texas Board of Pardon and Paroles, hereafter the Board, denied Graham’s first request for executive clemency and Governor Richards granted Graham a thirty day reprieve. Graham requested executive clemency a second time but the Board did not act on that request because of our aforementioned stay of Graham’s execution. Graham, 853 S.W.2d at 567.
Upon expiration of our stay, the judge of the 182nd District Court ordered Graham’s execution before sunrise on August 17, 1993. On July 21, 1993, Graham filed a civil suit in the 299th District Court of Travis County seeking an order compelling the Board to hold a hearing on his request for clemency. Graham contended art. I, §§ 13 and 19, and art. IV, § 11 of the Texas Constitution required a hearing. The judge of the 299th District Court agreed and entered a temporary injunction requiring the Board to hold a hearing on or before August 10, 1993, or to reschedule Graham’s execution until such a hearing could be held.1
On August 10, 1993, the Board filed notice of appeal to respondent, Third Court of Appeals. On Graham’s motion, respondent entered a writ of injunction enjoining relators from proceeding with the execution. Writ of Injunction, pg. 2. Respondent held the injunction was necessary to preserve its jurisdiction over the appeal.2
The Board filed a motion for leave to file original applications for writ of prohibition and mandamus in this Court requesting that we vacate the injunction, prohibit respondent from taking further action and address Graham’s claims.3 Relator Holmes filed a motion for leave to file petition for writ of mandamus and request for emergency stay requesting that we vacate respondent’s injunction.4 On August 16, 1993, we denied leave to file but, on our own motion, stayed Graham’s execution. State ex rel. Holmes v. Third Court of App., 860 S.W.2d 873 (Tex.Cr.App.1993).
On November 9, 1993, we re-considered each motion, granted leave to file and consol[392]*392idated the motions. The contentions before us are:
1. Whether respondent’s order illegally vacates a previously existing order of a court of equal and competent jurisdiction thereby usurping that court’s original jurisdictional authority over Graham’s case;
2. Whether respondent’s order violates the original jurisdiction of this Court under art. V, § 5 of the Texas Constitution;
3. Whether respondent had no jurisdiction to issue an injunction which is in effect a stay of Graham’s execution;
4. Whether Graham has failed to present his complaint to the trial court by means of exclusive post conviction habeas corpus remedy set forth within Tex.Code Crim.Proc.Ann. art. 11.07; and,
5. Whether this Court should assume original habeas corpus jurisdiction over this case and respond to the issue raised by Graham.
We will address contentions one, two, and, three in part II of this opinion; contention four in parts III, IV, and V; and, contention five in part VI.
II.
A. Mandamus
Our power to issue writs of mandamus is derived from art. V, § 5 of the Texas Constitution and Tex.Code Crim.Proc.Ann. art. 4.04.5 Mandamus is an extraordinary remedy to be invoked sparingly. State ex rel. Sutton v. Bage, 822 S.W.2d 55, 57 (Tex.Cr.App.1992). To be entitled to a writ of mandamus, the relator must demonstrate: 1) the act sought to be compelled is purely ministerial (as opposed to discretionary); and, 2) the relator has no other adequate remedy. Braxton v. Dunn, 803 S.W.2d 318, 320 (Tex.Cr.App.1991). See, State ex rel. Holmes v. Salinas, 784 S.W.2d 421 (Tex.Cr.App.1990); Collins v. Kegans, 802 S.W.2d 702 (Tex.Cr.App.1991); and, Steames v. Clinton, 780 S.W.2d 216 (Tex.Cr.App.1989).6
B. Criminal Law Matter
Our mandamus power is limited to “criminal law matters.” Tex. Const, art. V, § 5. See, n. 5, supra. See also, Dickens v. [393]*393Court of Appeals, 727 S.W.2d 542, 545 (Tex.Cr.App.1987). Therefore, the threshold issue is whether respondent’s injunction is a criminal law matter.
While no rale precisely defines the limits of a criminal law matter, we enunciated a general rule in Curry v. Wilson, 853 S.W.2d 40 (Tex.Cr.App.1993). Curry was acquitted in his criminal trial. After the trial, Wilson, the trial judge, believing Curry was no longer indigent, sought to recoup the legal fees incurred by Tarrant County for Curry’s representation. See, Tex.Code Crim.Proc.Ann. art. 26.05(e). Curry sought a writ of prohibition to prevent the recoupment. Wilson challenged our jurisdiction to hear the case, contending it was not a criminal law matter. Id., at 43. We explained that criminal law matters are those:
... Disputes which arise over the enforcement of statutes governed by the Texas Code of Criminal Procedure, and which arise as a result of or incident to a criminal prosecution... .7
Id. We noted respondent’s authority to order recoupment arose from the Code of Criminal Procedure. Id. We further observed that the legal services were incurred in the course of Curry’s criminal trial. Id. We concluded the “dispute [was] a criminal law matter and this Court [had] jurisdiction to hear the case and determine whether a writ of prohibition should issue.” Id.
Similarly, in Lanford v. Fourteenth Court of Appeals, 847 S.W.2d 581 (Tex.Cr.App.1993), we considered whether a former judge may preside at a criminal trial over the State’s objection. Lanford, who had resigned as a district judge, was assigned to sit as a visiting “former judge.” Tex.Gov’t Code Ann. § 74.054. Lanford, 847 S.W.2d at 583. The State’s objection to Lanford’s assignment was overruled. Id. The State then sought and received a writ of mandamus from the Fourteenth Court of Appeals ordering Lanford to not preside in a criminal case over the State’s objection. Id. Lanford sought a writ of mandamus from this Court ordering the Court of Appeals to rescind its writ of mandamus. Id., at 584. The State contended we lacked jurisdiction to decide the matter because “[t]he orderly assignment of judges [was] a concern which [was] peculiarly within the province of the Texas Supreme Court,” i.e., a civil law matter. Id.
In addressing the jurisdiction issue, we noted that the primary goal in interpreting constitutional provisions was to “ascertain and give effect to the apparent intent of the voters who adopted it.” Lanford, 847 S.W.2d at 585 (citing Edgewood I.S.D. v. Kirby, 777 S.W.2d 391, 394 (Tex.1989); and, Williams v. Castleman, 112 Tex. 193, 247 S.W. 263, 265 (1922)). We concluded:
... [the] average voters reading the phrase “criminal law matters” at the time of [art. V, § 5’s] adoption would probably have interpreted it to encompass, at a minimum, all legal issues arising directly out of a criminal prosecution. Thus, we conclude without difficulty that the constitutional phrase “criminal law matters” does encompass, and this Court does have jurisdiction over, the issue presented in Lanford’s application.
Lanford, 847 S.W.2d at 585.
Further, in Smith v. Flack, 728 S.W.2d 784 (Tex.Cr.App.1987), we considered whether the payment of attorney’s fees was a criminal law matter. See, Tex.Code Crim.Proc.Ann. art. 26.05. The relators, four court-appointed criminal defense attorneys, sought a writ of mandamus to compel the Harris County Auditor and Commissioner’s Court to pay attorneys’ fees awarded by a trial judge. Id., at 787-788. To determine whether we had jurisdiction to issue the wilt, we observed: “[W]hen read as a whole, Article V, § 5 ... grants this Court the power to issue writs of mandamus when a criminal law is the subject of the litigation." Id., at 788. Concluding the litigation was grounded upon art. 26.05, we held the writ application directly involved a criminal law matter. Id., 788-789. See also, Collier v. Poe, 732 S.W.2d 332, 334 (Tex.Cr.App.1987) (denial of motion for legislative continuance during criminal trial was a criminal law matter within Court’s mandamus jurisdiction); Dickens, 12.1 S.W.2d 542 (criminal discovery law was a criminal law matter within Court’s mandamus jurisdie[394]*394tion); and, Weiner v. Dial, 658 S.W.2d 786, 787 (Tex.Cr.App.1983) (appointment and compensation of attorneys to represent criminal clients pursuant to art. 26.05 is a criminal law matter).
Moreover, a matter does not cease to be a criminal law matter simply because it may be necessary to address elements of civil law in resolving the matter. See, Commissioners’ Court v. Beall, 98 Tex. 104, 81 S.W. 526, 528 (1904). Compare, Ex parte Mode, 77 Tex.Crim. 432, 180 S.W. 708 (1915) (statute providing for local elections for pool hall regulation held constitutional). Although civil and criminal law matters may occasionally overlap, when a matter is essentially criminal, the presence of civil law issues will not remove the matter from our jurisdiction. Smith v. Flack, 728 S.W.2d at 788-789. In Smith, we explained that our jurisdiction to determine incidental issues of civil law was necessary to the exercise of our mandamus power:
... Undoubtedly, the enforcement of an order issued pursuant to a criminal statute is a criminal law matter as much as the issuance of the order itself, even if it requires this Court to examine civil laws in the process. Were it otherwise, this Court’s power to decide criminal law matters would be seriously eroded or eliminated altogether by the incidental presence of civil law matters.
Id.
Clearly, the entry of an order which stays the execution of a death row inmate is a criminal law matter. Art. V, § 5 specifically confers exclusive appellate jurisdiction of all cases in which the death penalty has been assessed in the Court of Criminal Appeals. A sentence of death may only be based upon a conviction for capital murder. Tex.Penal Code Ann. § 19.03. Further, the legislature has provided specific procedures relating to a capital trial and the execution of the death sentence. See e.g., Tex.Code Crim.Proc.Ann. arts. 34.01, 35.13, 35.15, 37.071, 42.04, 43.14, 43.15, 43.16, 43.17, 43.18, 43.19, 43.20, 43.21, 43.22, 43.24, and, 43.25. Because the respondent’s injunction “arises over the enforcement of statutes governed by the Texas Code of Criminal Procedure,” and “arise[s] as a result of or incident to a criminal prosecution,” we hold this issue is a criminal law matter properly before this Court. See, Curry, supra; and, art. V, § 5.
C. Adequate Remedy
Graham contends relators have an adequate remedy through the normal appeals process. Relators contend this remedy is inadequate because the injunction was not a final judgment and, therefore, may not be immediately appealed. Further, relators contend the ultimate appeal of Graham’s case would be to the Supreme Court, Tex.R.App.P. 130, which would make resolution of the issue impossible because the Supreme Court would lack jurisdiction to decide the issue if we determine the injunction to be a criminal law matter, see, part 11(B), supra; and, State v. Morales, 869 S.W.2d 941 (1994).
In Smith, we held: “In some cases, a remedy at law may technically exist; however, it may nevertheless be so uncertain, tedious, burdensome, slow, inconvenient, inappropriate or ineffective as to be deemed inadequate.” Id., 728 S.W.2d at 792. As we stated in Steames, “[t]he remedy of appeal is simply inappropriate to the situation presented] here.” Id., 780 S.W.2d at 225. Rela-tors’ contentions address respondent’s jurisdiction to enter its writ of injunction. Resolution of this issue through the normal ap: peals process would necessarily require rela-tors to wait until final judgment is entered, and the appeals process would likely be through the civil courts. As previously noted, this Court has the ultimate jurisdiction over criminal law matters. See, Part 11(B), supra. Consequently, we hold that, under the facts of this ease, the normal appellate process would not provide relators an adequate remedy.
D. Discretionary or Ministerial
Relators contend respondent had no jurisdiction to enjoin Graham’s execution. Graham contends:
[w]hile the trial court and [the Court of Criminal Appeals] certainly have the authority to stay Mr. Graham’s execution, nothing in the statutes cited by Relators grants “exclusive” authority to either [395]*395court. Neither can they reasonably be read to limit the inherent authority of a Court of Appeals to enjoin parties before it from carrying out an execution when such action is necessary to the lawful exercise of jurisdiction over an appeal brought by state officials....
Response of Real Party in Interest to the State’s Motion For Leave To File Petition For Writ of Mandamus and/or Writ of Prohibition, pp. 13-14.8
At the time the indictment against Graham was filed in the 182nd District Court, “that court obtained sole jurisdiction over the case to exclusion of all other courts.” State ex rel. Millsap v. Lozano, 692 S.W.2d 470, 480 (Tex.Cr.App.1985). Graham was convicted of capital murder and was sentenced to death. Appeal to this Court was automatic, Tex.Code Crim.Proc.Ann. art. 37.071(h), and we affirmed. Graham, 671 S.W.2d at 529. On December 10, 1984, our mandate issued. Pursuant to our mandate, the judge of the 182nd District Court ordered Graham’s execution. The effect of respondent’s injunction was to circumvent our decision and disobey our mandate.9
In State ex rel. Wilson v. Briggs, 171 Tex.Crim. 479, 351 S.W.2d 892 (1961), Judge Cullen Briggs, judge of the 117th District Court in Nueces County, stayed the execution of Howard Stickney, an inmate convicted in Harris County of capital murder and sentenced to death. Briggs held a hearing on Stickney’s application for writ of habeas corpus and stayed the execution. We set aside the stay and denied the application. Id., 351 S.W.2d at 893. The trial judge again set Stickney’s execution. However, the execution was stayed by yet another district judge. Id. The trial judge scheduled a third execution. However, eight minutes before the execution, Briggs stayed the execution and scheduled a hearing in Nueces County. Re-lators sought a writ of prohibition directing “Judge Briggs to take no further action or hold any further hearings on this application for habeas corpus.” Id., 351 S.W.2d at 893-894. We held:
Judge Briggs has no greater authority or responsibility in death penalty cases tried in counties not in his judicial district than any of the other more than 150 district judges of this state. If it be the law in Texas that every district judge must be satisfied before a death sentence may be carried out, and any district judge may prevent the execution of such a sentence upon grounds which this Court has rejected, then this Court is not a court of last resort in criminal matters in this state.
Briggs, 351 S.W.2d at 896.10
We find Briggs controlling. Any order by another state court which purports to [396]*396stay a scheduled execution circumvents our decision and disobeys our mandate. Briggs, 351 S.W.2d at 894. Notwithstanding that respondent held the injunction was necessary to protect its jurisdiction over the appeal of the Graham’s civil case, Tex.R.App.P. 43, respondent may not interfere with our exclusive jurisdiction or disobey our mandate. We hold that respondent had no jurisdiction to enjoin the scheduled execution.
In State ex rel. Millsap v. Lozano, we considered whether an order entered when the trial court had no jurisdiction over the cause was subject to mandamus. “Being without jurisdiction, the order entered after hearing is void and a writ of mandamus may issue to compel vacation of the order or orders....” Id., 692 S.W.2d at 482. See, State ex rel. Eidson v. Edwards, 793 S.W.2d 1 (Tex.Cr.App.1990); and, Steames, supra. Consequently, we hold that respondent’s injunction must be vacated because respondent had no jurisdiction to enter an order enjoining Graham’s execution.11
Therefore we sustain relators’ contentions one, two and three and hold that relators are entitled to a writ of mandamus to compel the vacation of respondent’s injunction.
III.
The State contends Graham’s only remedy is through post-conviction habeas corpus. See, Tex.Code Crim.Proe.Ann. art. 11.07. In response, Graham contends post-conviction habeas corpus does not he in this case:
[hjabeas corpus is available only to review jurisdictional defects, or if the error is of constitutional dimension. Traditionally, however, the denial of fundamental or constitutional rights must have occurred during the underlying state criminal proceedings.
Graham’s Brief at pg. 37. Graham further contends that claims of newly discovered evidence are not cognizable through habeas corpus, and, therefore, his only remedy is through the executive clemency process. In support of this contention Graham relies on Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983).
A. Tex.Code Crim.Proc.Ann. art. 11.07
Tex.Code Crim.Proc.Ann. art. 11.01 defines writ of habeas corpus:
The writ of habeas corpus is the remedy to be used when any person is restrained in his liberty. It is an order issued by .a court or judge of competent jurisdiction, directed to any one having a person in his custody, or under his restraint, commanding him to produce such person, at a time and place named in the writ, and show why he is held in custody or under restraint.
Art. 11.07 § 2 provides the procedures for consideration of an application for writ of habeas corpus when the applicant is restrained by felony conviction. The writ is filed in the court where the conviction was obtained. Art. 11.07 § 2(b). If “controverted, previously unresolved facts ... material to the legality of the applicant’s confinement” exist, the trial judge must resolve the issues of fact and may order “affidavits, deposition, interrogatories, and hearings” to assist in his determination. After the trial judge makes “findings of fact,” the cause is transferred to this Court. Art. 11.07 § 2(d). We may deny relief “upon the findings and conclusions of the hearing judge,” or docket the case “as though originally presented.” Art. 11.07 § 3.
B. Post-Conviction Habeas Corpus and Newly Discovered Evidence
In Ex parte Binder, 660 S.W.2d 103 (Tex.Cr.App.1983), Binder contended he was entitled to habeas relief based on newly discover[397]*397ed evidence. Id., 660 S.W.2d at 104-106. We denied relief concluding that “post-conviction habeas corpus has not been and is not now the appropriate remedy for an applicant whose claim for relief is based on newly discovered evidence.” Id., 660 S.W.2d at 106. However, we noted that Binder’s contentions were “based on nothing more than newly discovered evidence.” Binder made no claim of a violation of a “state or federal constitutional or statutory right.” Id.
In Ex parte Bravo, 702 S.W.2d 189 (Tex.Cr.App.1982), Bravo contended he was entitled to habeas relief because the trial judge had improperly excused a veniremember under Adams v. Texas, 448 U.S. 38, 100 S.Ct. 2521, 66 L.Ed.2d 581 (1980). Bravo, 702 S.W.2d at 190-191. Finding the error to be of constitutional dimension, we granted relief. Id. In its motion for rehearing the State contended Bravo could not raise such a claim in his application for writ of habeas corpus because it was not raised on direct appeal. Id., 702 S.W.2d at 192. We overruled the State’s motion noting: “It is well established that habeas corpus will lie ... to review jurisdictional defect or denials of fundamental or constitutional rights.” Id., 702 S.W.2d at 193. See also, Ex parte Watson, 601 S.W.2d 350, 352 (Tex.CrApp.1980) (“[Hjabeas corpus will lie only to review jurisdictional defects or denials of fundamental or constitutional rights.”).
There is no question that Graham’s liberty has been restrained by virtue of his death sentence. Thus to determine whether Graham may pursue a post-conviction application of habeas corpus we must view Graham’s claims in light of Binder, supra, and Bravo, supra. Consequently, if Graham alleges the denial of a fundamental or constitutional right habeas corpus is the appropriate vehicle for this Court to address Graham’s claims. Id,
IV. Fundamental or Constitutional Right
Graham contends that newly discovered evidence demonstrates his innocence of the crime for which he was condemned. The Supreme Court considered a similar issue in Herrera v. Collins, — U.S.—, 113 S.Ct. 853, 122 L.Ed.2d 203 (1993), under the Due Process Clause of the Fourteenth Amendment.12 Herrera was convicted of capital murder and sentenced to death in 1982. Ten years later, Herrera filed a federal habeas petition wherein he asserted newly discovered evidence that his brother committed the murder. Herrera contended he was entitled to federal habeas relief under the Due Process Clause of the Fourteenth Amendment and the prohibition against cruel and unusual punishment found in the Eighth Amendment. Herrera, — U.S. at— —, 113 S.Ct. at 856-859. Chief Justice Rehnquist, writing for the majority, stated: “We may assume for the sake of argument in deciding this case ... a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional, and warrant federal habeas relief if there were no state avenue open to process such a claim.” Herrera, — U.S. at —, 113 S.Ct. at 869. From our reading of Herrera, we understand six members of the Supreme Court to have recognized the execution of an innocent person would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Graham, 853 S.W.2d at 567, n. 1 (Maloney, J., concurring and dissenting), (citing Herrera, — U.S. at —, 113 S.Ct. at 853; Id.,—U.S. at—, 113 S.Ct. at 869 (O’Connor and Kennedy, JJ., concurring; Id., — U.S. at —, 113 S.Ct. at 875 (White, J., concurring); and, Id., — U.S. at—, 113 S.Ct. at 876 (Blackmun, Stevens, and Souter, JJ., dissenting)). With this sound and fundamental principle of jurisprudence we cannot disagree; such an execution would surely constitute a violation of a constitutional or fundamental right.
With the foregoing in mind, we read Graham’s contentions as claiming his execu[398]*398tion would violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. Accordingly, we hold that habeas corpus is an appropriate vehicle for Graham to assert his claim. To the extent that it conflicts with this holding, Binder is expressly overruled.
V.
A. Threshold Standard
In Herrera, the Court recognized the need for an “extraordinarily high” threshold showing of innocence before habeas proceedings would be appropriate. Herrera, — U.S. at —, 113 S.Ct. at 869. The State agrees that before conducting proceedings on a claim of factual innocence based on newly discovered evidence a threshold should be required. The State contends that consideration of newly discovered evidence without the establishment of a threshold “would unfairly denigrate the constitutionally mandated right to trial by jury and would diminish, rather than enhance, the truth-seeking function of the criminal justice process.” We agree.
Judge Maloney suggested such a threshold standard in Ex parte Graham, 853 S.W.2d 565, 567 (Tex.Cr.App.1993) (Maloney, J., concurring and dissenting, Baird and Overstreet; JJ., join).
As to capital cases where newly discovered evidence is presented in support of a claim of actual innocence, this Court should establish a threshold standard.... In my opinion, the threshold question should be whether the newly discovered evidence, if true, would create a doubt as to the efficacy of the verdict to the extent that it undermines our confidence in the verdict and that it is probable that the verdict would be different....
We believe the adoption of this threshold standard will serve to eliminate the frivolous claims of factual innocence based on newly discovered evidence and provide for the efficient administration of such potentially meritorious claims. Consequently, we hold an applicant seeking habeas relief based on a claim of factual innocence must, as a threshold, demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine' confidence in the verdict and that it is probable that the verdict would be different. Once that threshold has been met the habeas court must afford the applicant a forum and opportunity to present his evidence. We now must determine the burden of proof the applicant must bear at that hearing in order to obtain habeas relief.
B. The Burden of Proof
Both Chief Justice Rhenquist speaking for the majority and Justice Blackmun, in dissent, stated “a truly persuasive demonstration of ‘actual innocence’ made after trial would render the execution of a defendant unconstitutional.” Id., —U.S. at—and,—, 113 S.Ct. at 856 and, 882. Although Chief Justice Rhenquist did not define precisely the burden associated with “a truly persuasive demonstration of actual innocence,” we believe such a burden should be very high. The reasons for establishing such a high burden were articulated by Justice Blackmun in explaining why an otherwise constitutionally valid conviction should not be set aside lightly.
... [Cjonviction after a constitutionally adequate trial strips the defendant of the presumption of innocence. The government bears the burden of proving the,defendant’s guilt beyond a reasonable doubt, [citations omitted], but once the government has done so, the burden of proving innocence must shift to the convicted defendant ... When a defendant seeks to challenge the determination of guilt after he has been validly convicted and sentenced, it is fair to place on him the burden of proving his innocence, not just raising doubt about his guilt.
Herrera, — U.S. at—, 113 S.Ct. at 882-883 (Blackmun, J., dissenting).
In his concurrence, Justice White articulated the burden we feel is appropriate in these cases:
In voting to affirm, I assume that a persuasive showing of “actual innocence” made after trial, even though made after the expiration of the time provided by law [399]*399for the presentation of newly discovered evidence, would render unconstitutional the execution of petitioner in this ease. To be entitled to relief, however, petitioner would at the very least be required to show that based on proffered 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.” Jackson v. Virginia, 443 U.S. 307 324, 99 S.Ct. 2781, 2792, 61 L.Ed.2d 560 (1979)....
Herrera, — U.S. at—, 113 S.Ct. at 875 (White, J., concurring).
Therefore, we hold 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.
This threshold standard and burden of proof will satisfy the Due Process Clause of the Fourteenth Amendment and we adopt them in the habeas context. If the applicant meets the threshold standard announced above the habeas judge must hold a hearing to determine whether the newly discovered evidence, when considered in light of the entire record before the jury that convicted him, shows that no rational trier of fact could find proof of guilt beyond a reasonable doubt.
Therefore, we sustain the fourth contention and hold that, pursuant to Tex.Code Crim.Proc.Ann. art. 11.07, Graham may appropriately couch his claims of factual innocence in the context of a violation of the Due Process Clause of the Fourteenth Amendment.13
VI.
Finally, relators request that we assume original habeas corpus jurisdiction and resolve Graham’s claims. However, in light of our resolution of relator’s fourth contention, Graham is free to pursue his claims through the filing of an application under Tex.Code CiTm.Proc.Ann. art. 11.07. But, there is no application presently pending before this Court, nor has the trial judge been given the opportunity to prepare findings of fact consistent with art. 11.07 § 3. Consequently, relators’ fifth contention is dismissed.
Conclusion
We withhold issuance of the writ of mandamus and accord respondent the opportunity to conform its actions with part II of this opinion. Should such action not be taken, the wilt of mandamus will issue. Our stay of execution granted August 16, 1993, is vacated.