Justice GUZMAN delivered the opinion of the Court.
A jury found that M.P.A. committed sexual assault of a child based on the testimony of two witnesses who have now recanted, and sentenced M.P.A. to twenty years' confinement after hearing false testimony by a State's expert. The district court denied habeas relief and the court of appeals affirmed. M.P.A. asks us to reverse and hold that he is actually innocent, that the false testimony contributed to his sentence, and that his trial counsel rendered ineffective assistance.
We conclude M.P.A. is not entitled to relief on his claims of actual innocence or ineffective assistance of counsel. However, we hold false testimony by the State's expert witness contributed to his sentence and he is therefore entitled to a new disposition (sentencing) hearing.
S.A. and A.A. accused their cousins M.P.A. and J.W.A. of sexually assaulting them. At the time of the alleged acts, S.A. was seven, A.A. was five, M.P.A. was fourteen, and J.W.A. was fifteen.
At trial, A.A. did not testify that M.P.A. had sexually assaulted him, but both S.A. and A.A. testified that M.P.A. sexually assaulted S.A. In addition, Alice Linder, a sexual assault nurse examiner who had examined S.A. and A.A. testified that they told her that M.P.A. and J.W.A. had sexually assaulted them. M.P.A. was the only defense witness and he testified that he did not sexually assault S.A. The trial court granted a defense motion for a directed verdict regarding the count that M.P.A. had sexually assaulted A.A. The jury found that M.P.A. had sexually assaulted S.A.
At the disposition phase, the State presented two witnesses: Dr. Frederick Willoughby, a licensed psychologist and registered sex offender treatment provider, and Kathie Lewis, a probation officer. Willoughby testified regarding an "Abel Assessment" that he had administered to M.P.A. Willoughby testified that the Abel Assessment is a test that predicts which people have an interest in particular sexes and age groups. One portion of the test consists of a questionnaire. M.P.A.'s answers to this portion of the test were "socially desirable." The portion of the Abel Assessment at issue in this case consists of a series of slides that are shown to the subject. The slides depict individuals of various age and gender, and the subject's sexual interest is measured by how long the subject looks at each slide. The results are computerized and sent to Atlanta, where the test is "scored."
A.A. recanted approximately nine months after the trial and S.A. recanted approximately twenty months after the trial. At the habeas court below, both S.A. and A.A. testified that they falsely accused their cousins because their mother, LaVonna, told them to. J.W.A. also recanted his confession and testified at the habeas court that he did not sexually assault A.A. and S.A. In addition, the evidence at the habeas hearing showed that approximately four years after M.P.A.'s original trial, Willoughby entered into an agreed order with the Texas State Board of Examiners of Psychologists stating that he "misstated in his court testimony the research that had been conducted with respect to the Abel Assessment."
M.P.A. filed the writ of habeas at issue in this case, arguing that he was actually innocent, that Willoughby's false testimony contributed to his sentence, and that his trial counsel rendered ineffective assistance. The habeas court found that the recantations were not credible. In so finding, it relied on J.W.A.'s confession and the testimony from all the witnesses. It also found that Willoughby's "misstatements, if any," did not contribute to M.P.A.'s sentence, and that M.P.A.'s trial counsel was effective. The court of appeals affirmed and M.P.A. appealed to this Court.
M.P.A. argues that he is entitled to relief based on the newly discovered evidence of S.A. and A.A.'s recantations. At the habeas hearing, they testified that LaVonna told them to falsely accuse M.P.A. and J.W.A. S.A. testified that LaVonna told her this was necessary to keep LaVonna out of jail. M.P.A. alleges that LaVonna's motive was that these accusations would reflect badly on S.A. and A.A.'s father, Stephan, in their then-ongoing custody proceeding, and that the recantations are corroborated by the record.
In Keeter v. State, the Court of Criminal Appeals addressed a recantation of a juvenile's sexual assault allegations in the context of a motion for a new trial. 74 S.W.3d 31, 33 (Tex.Crim.App.2002). The Court surveyed its cases and summarized the bases for disbelieving a recanting witness:
Id. at 38 (citations omitted). The Keeter Court affirmed the trial court's rejection of the recantation because, inter alia, the complainant recanted after moving into the residence of her mother, with whom the defendant had resided, and there was evidence that the defendant's father had pressured the complainant to recant. Id. at 39.
Here, although substantial evidence corroborates the recantations, there is some evidence of pressure to recant by Stephan's family and an investigator hired by Stephan. While we recognize that recantation of sexual assault in the context of custody litigation should be given serious consideration, there is evidence in this record to support the trial court's rejection of the recantation testimony. S.A. first recanted when Stephan's girlfriend told S.A. she did not like her because S.A. was a liar who put people in jail. A.A. and S.A. both testified that the investigator hired by Stephan did not pressure them to recant, but A.A. testified that the investigator gave him "encouragement" to recant and "kept asking" him if the sexual assault allegations were true.
In addition, J.W.A. confessed to the police that he had sexually assaulted S.A. and he subsequently pleaded true to sexually assaulting S.A. We note that J.W.A. recanted his confession and has testified that he did not understand the significance of his confession or plea. We further note that the Court of Criminal Appeals has explained that innocent defendants will sometimes plead guilty. Ex Parte Tuley, 109 S.W.3d 388, 393 n. 2 (Tex.Crim.App.
Barina testified J.W.A. told him he and M.P.A. sexually assaulted S.A. Barina explained M.P.A. and J.W.A.'s family informed him J.W.A. would testify M.P.A. did not commit the alleged assault. Therefore, Barina planned to call J.W.A. to the stand at the original trial to testify M.P.A. was innocent. However, when Barina met with J.W.A. to prepare for trial, J.W.A. implicated M.P.A. in the offense. J.W.A. said he himself "had done it and that he saw [M.P.A.] `do it.'" If J.W.A. testified M.P.A. did not commit the offense, it could amount to perjury. If J.W.A. testified M.P.A. committed the offense, it could damage M.P.A.'s defense. Barina decided not to call J.W.A. as a witness. This statement by J.W.A. is not negated by J.W.A.'s explanation of his confession to the police or his decision to plead true-neither his confession nor plea implicated M.P.A. in a sexual assault on S.A. J.W.A. denies telling Barina he and M.P.A. sexually assaulted S.A. But the habeas court was entitled to believe Barina. Hence, JWA's statement to Barina supports the habeas court's decision.
M.P.A. cites several cases with factual similarities to the instant case. However, we defer to habeas courts' credibility determinations and in those cases the habeas courts had credited the recantations. See Ex parte Calderon, 309 S.W.3d 64, 65 (Tex. Crim.App.2010); Ex Parte Thompson, 153 S.W.3d 416, 417 (Tex.Crim.App.2005); Elizondo, 947 S.W.2d at 210. In contrast, here the habeas court, with some record support, rejected the credibility of the recantations. Like the Calderon, Thompson, and Elizondo courts, we defer to the habeas court's evaluation of the recantations' credibility because there is some evidence supporting that determination.
As a threshold matter, we must determine whether M.P.A. may bring his false testimony claim via habeas. Defendants are ordinarily barred from raising claims on habeas that could have been raised at trial or on direct appeal. Ex parte Napper, 322 S.W.3d 202, 228 (Tex. Crim.App.2010) (citing Ex parte Pena, 71 S.W.3d 336, 337-38 (Tex.Crim.App.2002)). However, while the Court of Criminal Appeals has found that a defendant's failure to complain about false testimony by the State before a habeas proceeding affects the threshold for showing harm, it did not
The State knowingly used false testimony in Fierro, 934 S.W.2d at 371-73, but no evidence shows that the State knowingly used the false testimony in the instant case. However, the Court of Criminal Appeals does not distinguish between knowing and unknowing usage of false testimony for purposes of harm analysis. Ex parte Chabot, 300 S.W.3d 768, 771 (Tex. Crim.App.2009).
A false testimony claim is subject to harmless-error review. Chabot, 300 S.W.3d at 771; Fierro, 934 S.W.2d at 374. A habeas applicant must establish by a preponderance of the evidence that the error contributed to his conviction or punishment. Chabot, 300 S.W.3d at 771; Fierro, 934 S.W.2d at 375. This framework applies to the trial's disposition phase as well as the adjudication phase. Ghahremani, 332 S.W.3d at 477 (citing Estrada, 313 S.W.3d at 287-88). Applying this standard here, M.P.A. must show that Willoughby's testimony would have been excluded had it been truthful and that M.P.A. would have received a different sentence absent Willoughby's testimony.
Willoughby testified as an expert in this case. A party offering scientific expert testimony must show by clear and convincing evidence that the science is reliable. Kelly v. State, 824 S.W.2d 568, 573 (Tex.Crim.App.1992); see also In re D.W.P., No. 06-07-00113-CV, 2008 WL 53211, at *1 (Tex.App.-Texarkana Jan. 4,
Kelly governs the reliability determination and specifies several non-exclusive factors to guide the inquiry.
Willoughby testified regarding the Abel Assessment outside the presence of the jury. When asked about the Abel Assessment's error rate, he stated that "[f]or classifying people who have significant sexual interest in female children under the age of fourteen, the accuracy rate is 85 percent." This is particularly significant because at the time of the alleged offense, S.A. fell into this category. In addition, in response to a question regarding the existence of literature supporting or rejecting the Abel Assessment, Willoughby stated that "[t]here is [sic] a number of articles out by Gene Abel and his colleagues. Also researchers at Brigham Young University have established the reliability of the instrument and the classification accuracy of the instrument."
Much of this testimony was false. In 1998, the accuracy rate of the Abel Assessment, according to Abel and his colleagues, for classifying people with a significant sexual interest in female children under fourteen was only 65%, not 85%. This weighs against the reliability of the Abel Assessment.
Regarding the application of the Abel Assessment to adolescents, they found that no research other than their own had been done and that Abel's initial study only included two adolescents. Their own research led them to conclude that data did "not support the reliability of [the Abel Assessment] for use with adolescents," "that the ability of [the Abel Assessment] to discriminate adolescent offenders from nonoffenders was not significantly better than chance," and the Abel Assessment's "ability to screen or diagnose adolescent perpetrators reliably has not been demonstrated."
The State argues that the following evidence supports the admission of Willoughby's testimony:
With the exception of Abel's own study, the State did not present this evidence to the trial court. Nor would this evidence have been presented to the trial court had Willoughby testified truthfully regarding the Abel Assessment's error rate and the BYU studies' reliability findings. Therefore, we do not consider it in our determination of whether the trial court would have found the Abel Assessment reliable absent Willoughby's false testimony.
The State argues that we should consider the four independent studies because the State would have used them to rebut the criticisms in the BYU studies if Willoughby had testified truthfully about the BYU studies.
The State additionally argues that we should apply the less stringent standard from Nenno v. State to this case. 970 S.W.2d 549, 561 (Tex.Crim.App.1998), overruled on other grounds by State v. Terrazas, 4 S.W.3d 720, 727 (Tex.Crim. App.1999). Nenno held that Kelly's reliability requirement applies with less rigor to fields of study aside from the hard sciences. Id. Nenno noted that "hard science methods of validation, such as assessing the potential error rate or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences." Id.
This case stands in sharp contrast to Nenno. There, an expert testified regarding future dangerousness based on his experience studying cases. Id. at 562. That expert "did not contend that he had a particular methodology." Id. Here, the Abel Assessment was subject to peer review and testing of its accuracy rate. Therefore, we consider those factors. See Mendoza v. State, No. AP-75213, 2008 WL 4803471, at *22 n. 62 (Tex.Crim.App. Nov. 5, 2008) (applying peer review factor in the soft science context of predicting future dangerousness because expert claimed to have a methodology, and contrasting Nenno); Nenno, 970 S.W.2d at 561 & n. 9 (stating that Nenno does not preclude employing the error rate and peer review factors in appropriate cases).
In sum, had Willoughby testified truthfully, the trial court would have been faced with testimony regarding a test that had only a 65% accuracy rate as applied to this case, was subject to at least some criticism in the literature as applied to this case, and had no support from independent studies as applied to this case. The only
In order to obtain a new sentencing hearing, M.P.A. must prove by a preponderance of the evidence that Willoughby's testimony contributed to his sentence. Ex parte Williams, 65 S.W.3d 656, 658 (Tex.Crim.App.2001).
The State argues that the testimony of M.P.A.'s trial counsel, Bobby Barina, supports the habeas court's finding that Willoughby's testimony likely did not sway the jury. Barina stated in his affidavit that Willoughby's testimony had "zero impact" on the jury. At the habeas hearing, he explained that Willoughby's testimony was "boring." He stated that it "didn't provide any insight to anybody," but did not remember that Willoughby likened M.P.A. to a pedophile. Barina also described Willoughby as "arrogant" and stated that the jury did not take "much consideration to anything Dr. Willoughby told them ... just because of the nature of Willoughby."
Barina's observations do not address the State's use of Willoughby's testimony to refer to M.P.A. as a pedophile throughout its closing argument. See Serv. Corp. Int'l v. Guerra, 348 S.W.3d 221, 236 (Tex.2011) (stating that determination of whether error is harmful includes evaluating closing argument and counsel's emphasis of erroneous evidence); Mathis v. State, 67 S.W.3d 918, 929 (Tex.Crim.App.2002) (Johnson, J., concurring) (separately analyzing admission of testimony and State's use of that testimony during closing statements); LaPoint v. State, 750 S.W.2d 180, 192 (Tex.Crim.App.1988) (analyzing whether the State exploited erroneous instruction during closing argument). Here, the State argued:
These references to Willoughby's testimony bolstered the State's closing theme of protecting the community:
In sum, the State utilized Willoughby's testimony throughout its closing theme of protecting the community. In addition, the State emotionally appealed to the jury to think about Willoughby's classification of M.P.A. as a pedophile with a specific interest in S.A.'s age group. Indeed, the State's closing argument made more express references to Willoughby's testimony than to any other testimony in the case. Therefore, we conclude that the State's use of Willoughby's testimony at closing contributed to M.P.A.'s sentence.
Juveniles are entitled to effective assistance of counsel in adjudication proceedings. E.g., In re R.D.B., 20 S.W.3d 255, 258 (Tex.App.-Texarkana 2000, no pet.). To obtain habeas relief on a claim of ineffective assistance of counsel, M.P.A. must show that Barina's performance was objectively unreasonable and Barina did not function as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). M.P.A. must make this showing by a preponderance of the evidence. Thompson v. State, 9 S.W.3d 808, 813 (Tex.Crim.App.1999).
Courts measure reasonableness by prevailing professional norms, Strickland, 466 U.S. at 688, 104 S.Ct. 2052, and give a heavy measure of deference to counsels' judgments, id. at 691, 104 S.Ct. 2052. We look to "the totality of the representation and the particular circumstances of each case" in evaluating effectiveness. Thompson, 9 S.W.3d at 813. There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. 2052.
The question of Barina's effectiveness is one of mixed law and fact, id. at 698, 104 S.Ct. 2052, and we therefore defer to the trial court's factual determinations but review its legal determinations de novo. Perry Homes v. Cull, 258 S.W.3d 580, 598 (Tex.2008). We conclude that Barina's performance was not deficient under Strickland.
M.P.A. argues that Barina rendered ineffective assistance at the adjudication phase because he failed to investigate or advance arguments that no sexual abuse occurred. However, at the time of trial, J.W.A. had confessed, which was inconsistent with an argument that no sexual assault occurred. Therefore, Barina could reasonably have believed that a strategy of affirmatively disproving the existence of a
M.P.A. specifically argues that Barina failed to interview a member of Catholic Charities who had noted that S.A. and A.A. denied abuse and showed no definitive indicators of abuse. However, the statement that the children denied abuse was not made until after trial. In addition, Barina stated that he had reviewed a report by Catholic Charities at the time of trial, which stated that there was no outcry but also discussed reasons why children typically might not volunteer information. Furthermore, pursuing this issue likely would have led the State to put on evidence that S.A. and A.A.'s behavior was consistent with abuse.
M.P.A. additionally argues that Barina failed to follow up on S.A. having to stop an interview in order to practice answering questions with LaVonna. The Iowa Department of Human Services had interviewed S.A. and A.A. at the request of Iowa and Texas police departments. A report from a police detective who was present noted that S.A. wanted to practice the questions with LaVonna. A social worker later interpreted this as S.A. wanting LaVonna to tell her what to say, which Barina viewed as an exaggeration. Barina interpreted the tape as S.A. being nervous and wanting her mother in order to calm down. Barina further stated that the tape referenced other sexual assaults not alleged by the State, so he did not want it admitted into evidence.
M.P.A. also asserts that Barina failed to adequately cross-examine the State's medical expert. Dr. Green. Dr. Green had testified that the physical evidence was consistent with a possible suspicious finding. Barina testified that he thought Green's testimony was as tentative as could have been hoped for, so there would be little benefit to aggressively cross-examing Green and allowing re-direct examination to refute whatever he could have accomplished via cross-examination.
Finally, M.P.A. asserts that Barina should have obtained an expert to refute Green's findings. The Second Circuit Court of Appeals granted relief on a similar claim in Gersten v. Senkowski, 426 F.3d 588 (2d Cir.2005). In Gersten, the State's case "rested centrally on the alleged victim's testimony and its corroboration by the indirect physical evidence as interpreted by the medical expert." Id. at 608. The petitioner's trial counsel had "essentially conceded that the physical evidence was indicative of sexual penetration without conducting any investigation to determine whether this was the case." Id. The court noted that "medical expert consultation or testimony is particularly critical to an effective defense in sexual abuse cases where direct evidence is limited to the victim's testimony." Id. The petitioner's trial counsel unsuccessfully pursued a trial strategy of cross-examining the State's expert. Id. at 609-10. The counsel thought that disproving sexual activity had occurred would be fruitless because of hearsay from the petitioner that the victim engaged in sexual conduct with her ex-boyfriend. Id.
The general premise of Gersten is inapplicable here for two reasons. First, in Gersten, the victim had accused the petitioner of "`continuing rape and sodomy over a period of years.'" Id. at 608 (quoting Gersten v. Senkowski, 299 F.Supp.2d 84, 91 (E.D.N.Y.2004)). Therefore, "the medical testimony was central not only because it constituted the most extensive corroboration that any crime occurred, but because to undermine it would undermine the alleged victim's credibility and thus the entire prosecution case as to all charges." Id. at 608. Although an expert for M.P.A.
In sum, looking at the totality of the representation, Gersten does not apply here. Given the heavy discretion afforded trial counsel, we cannot say that M.P.A. has met his burden to show that Barina's representation was objectively unreasonable.
Because we have determined that M.P.A. is entitled to a new disposition hearing, see Part III, supra, we do not address M.P.A.'s claim of ineffective assistance of counsel at the disposition phase.
We hold that M.P.A. has not established his right to relief on his claims of actual innocence or ineffective assistance of counsel at the adjudication phase. However, M.P.A. is entitled to a new disposition hearing because Willoughby's false testimony contributed to his sentence. We remand this cause to the district court to grant M.P.A.'s writ of habeas corpus in accordance with this opinion.
We also note that the Court of Criminal Appeals has stated that there is a question about forfeiting a false testimony claim when an applicant made no complaint about allegedly false testimony at trial. Napper, 322 S.W.3d at 241 (citing Estrada v. State, 313 S.W.3d 274, 288 (Tex.Crim.App.2010)). In Napper, the Court of Criminal Appeals addressed the merits "[w]ithout expressing any opinion on the preservation of error question." Id. Regardless, its current precedent allows M.P.A. to bring the false testimony claim in habeas and we will not find waiver by anticipating future potential decisions. This is consistent with the Legislature's statutory directives that its provisions relating to habeas "shall be most favorably construed in order to give effect to the remedy, and protect the rights of the person seeking relief under it," TEX.CODE CRIM. PRO. art. 11.04, and that the purpose of a habeas appeal is "to do substantial justice to the parties," TEX.R.APP. PROC. 31.2.
Moreover, the titles of at least two of the papers, A Comparison of the Penile Plethysmograph with The Abel Assessment for Sexual Interest on Incarcerated Military Sex Offenders, and Comparing Outcomes of Plethysmographic Assessment with The Abel Assessment in a Prison Based Sex Offender Sample, indicate they did not address the use of the Abel Assessment on adolescents.
Finally, we note that other courts found the Abel Assessment unreliable and criticized what appear to be the same studies. See Birdsbill, 243 F.Supp.2d at 1134-35 (criticizing studies on multiple grounds and finding they do not support the reliability of a later version of the Abel Assessment); Ready v. Massachusetts, No. Civ.A. 00-10390 SDP, 2002 WL 1255800, at *8-12 (Mass.Super.Ct. May 17, 2002, pet.denied) (same).
