EX PARTE JESSE BENAVIDES (Concurring

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. AP-76,264
EX PARTE JESSE BENAVIDES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
FROM BEXAR COUNTY 
Meyers, J., filed a concurring and dissenting opinion, in which Hervey, J., joined. 
CONCURRING AND DISSENTING OPINION

The victim in this case, Pennington, delivered an affidavit to Applicant's attorney stating that she attended Applicant's revocation hearing and did not recognize Applicant as the person who assaulted her. This led Applicant to file the application for writ of habeas corpus that is before us, in which he claims actual innocence on the basis of identity. Pennington testified at the habeas hearing and again said that Applicant was not the man who sexually assaulted her. She also said, for the first time, that she consented to having sex with the person who drove her home from the auto shop.

I can see how the majority would deny the application on the identity issue-there is credible evidence refuting Pennington's claim that she did not recognize Applicant, including testimony from Applicant's co-worker that Applicant is the one who drove Pennington home, that Pennington had picked Applicant from a photo lineup, that Applicant admitted he had taken Pennington home and "might have played around with her," and that her inability to recognize Applicant at the revocation hearing was many years after the alleged assault.

The issue of consent, however, was not raised in the writ before us because Pennington's testimony that she consented did not occur until after the writ was filed. At the time of the writ hearing, Pennington's consent officially became newly discovered evidence. Therefore, Applicant is entitled to file a separate application raising the consent issue.

Because consent was not raised in this application for writ of habeas corpus, the majority should not include this issue in the decision to deny the application. I concur with the denial of the current application on the identity issue that was raised, but I disagree with the majority's consideration of the consent issue since it is newly discovered evidence that has not yet been raised in an application for writ of habeas corpus.

Meyers, J.

Filed: May 26, 2010

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