WIMBERLY, CHRISTOPHER EUGENE Appeal from 27th District Court of Bell County (concurring by judge yeary)
Annotate this Case
Download PDF
IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-64,017-05 EX PARTE CHRISTOPHER EUGENE WIMBERLY, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 54,705-E IN THE 27TH DISTRICT COURT FROM BELL COUNTY YEARY, J., filed a concurring opinion. CONCURRING OPINION I agree that this applicant has not satisfied the Elizondo standard, which would entitle him under our jurisprudence to habeas corpus relief in the form of a new trial. Ex parte Elizondo, 947 S.W.2d 202, 209-10 (Tex. Crim. App. 1996). I therefore concur in the Court’s judgment in this cause, with one significant caveat. I continue to disagree with the Court’s use of the term of “actual innocence” to describe the status of applicants who have merely satisfied the Elizondo standard for obtaining post-conviction relief. See Ex parte Cacy, ___ S.W.3d ___, No. WR-85,420-01, 2016 WL 6471975 (Tex. Crim. App. Nov. 2, 2016) (Yeary, J., concurring) (published). Wimberly — 2 In describing the Elizondo burden today, the Court declares that an applicant must show, by clear and convincing evidence, that, adding his new exculpatory evidence to the evidentiary mix, “no reasonable juror could have found [him] guilty in light of the new evidence.” Majority Opinion at 17 (citing Ex parte Mayhugh, 512 S.W.3d 285, 295 (Tex. Crim. App. 2016) (plurality opinion)).1 The Court then further describes this admittedly “Herculean” standard as even more “Herculean” than it really is: it must “unquestionably establish [the applicant’s] actual innocence by clear and convincing evidence.” Id. at 19 (emphasis added). The Court then conflates these two very distinct standards at the end of its opinion, declaring that, because Applicant failed to demonstrate that no reasonable juror would have convicted him, he has not unquestionably established his innocence. Id. at 24.2 I will reiterate what I said in Cacy: Not every successful Elizondo applicant is necessarily literally “actually innocent.” The Elizondo standard, on its face, does not really focus on innocence per se. It is, instead, an exceedingly high burden by which an applicant must show that, if newly available evidence were added to the evidentiary mix, no reasonable jury would have found the State’s case to have been compelling enough to defeat the systemic presumption of innocence. Simply put, the State would not have been able to prove him guilty beyond a reasonable doubt, and a reasonable jury would be obliged to declare him not 1 Never mind that Elizondo itself asks whether a reasonable juror would have convicted the applicant in light of the new evidence. 947 S.W.2d at 209. Somewhere along the way, the word “would” from the original articulation of the standard in Elizondo was converted into the word “could.” Mayhugh itself cites Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006), and Ex parte Tuley, 109 S.W.3d 388, 392 (Tex. Crim. App. 2002), for its “could” formulation of the standard. Brown cites only Tuley. But Tuley cites nothing at all—not even Elizondo itself—at the point at which it converts “would” to “could.” 2 This time the Court does use the original Elizondo formulation of “would.” Wimberly — 3 guilty. This is not the same as establishing that the applicant is manifestly innocent. Cacy, 2016 WL 6471975, at *1. An applicant who has truly proven that he is “actually” or “unquestionably” innocent has undoubtedly satisfied the Elizondo standard. But that does not mean that every applicant who can satisfy the Elizondo standard has necessarily established that he is “actually” or “unquestionably” innocent. For this reason, I would avoid the innocence label altogether in this context—much less “unquestionable” innocence. Perhaps a claim under the Elizondo standard would better be described as a “plea for the restoration of the presumption of innocence.” Or, more simply, a claim for Elizondo relief. Because I agree that Applicant has not met his burden to establish that he is entitled to relief on an Elizondo claim, I concur in the result. FILED: November 1, 2017 DO NOT PUBLISH
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
