Whitehorn, James Newton II

• Court: Court of Criminal Appeals of Texas
• Decided: March 27, 2013
• Docket: WR-77,944-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-77,944-01 EX PARTE JAMES NEWTON WHITEHORN, II, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F35015A IN THE 18TH DISTRICT COURT

FROM JOHNSON COUNTY

Per curiam.

O R D E R

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of four counts of indecency with a child by contact and one count of aggravated sexual assault of a child. He was sentenced to concurrent terms of twenty years for each indecency conviction and a concurrent term of thirty years for the aggravated sexual assault conviction. The Tenth Court of Appeals affirmed the convictions in an unpublished opinion. Whitehorn v. State, No. 10-02-00263-CR (Tex. App.--Waco del. Jul. 14, 2004). Applicant's Petition for Discretionary Review was refused.

Applicant was charged in a single, multi-count indictment. Counts 1 to 4 alleged indecency by contact with one complainant; Count 5 alleged the aggravated sexual assault of a different complainant. Applicant raised, through habeas counsel, a bare claim of actual innocence regarding the aggravated sexual assault conviction, a claim trial counsel was ineffective for failing to investigate and discover the evidence of actual innocence, and a claim of ineffective assistance for failing to move to sever the indecency counts from the aggravated sexual assault count. The bare actual innocence claim was based on the complainant's recantation, and the State provided several affidavits calling the truthfulness of the recantation into question. There were no credibility determinations regarding the recantation or the competing affidavits, so the application was remanded to the trial court for a live evidentiary hearing.

The trial court held an evidentiary hearing at which the complainant testified as well as another witness who testified to facts calling the truthfulness of the complainant's recantation into doubt. Based on this testimony and its own observations of the witnesses, the trial court finds that the complainant's recantation is not credible. It recommends that relief based upon it be denied. The trial court's findings are supported by the hearing transcript and are adopted by this Court. Accordingly, this Court holds that Applicant's claim of actual innocence lacks merit. This Court has also independently reviewed the remaining claims raised in the habeas application and holds that they lack merit as well. Relief is therefore denied.

Filed: March 27, 2013

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