JOHNSON, ALLEN MAURICE Appeal from 104th District Court of Taylor County (concurring by judge yeary)
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In the Court of Criminal Appeals of Texas No. WR-94,542-01 EX PARTE ALLEN MAURICE JOHNSON, Applicant On Application for a Writ of Habeas Corpus Cause No. 20508-B(1) in the 104th District Court From Taylor County YEARY, J., filed a concurring opinion. Today the Court grants Applicant post-conviction habeas relief based on his claims of actual innocence and involuntary plea. I agree that Applicant is entitled to relief. I write separately to briefly express my disagreement with the Court’s jurisprudence surrounding actual innocence. I agree with the Court that Applicant has satisfied the burden JOHNSON – 2 established in Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). Where my thinking differs is that the Court declares Applicant to be “actually innocent” by virtue of meeting this standard alone. For reasons that I have expressed before, I disagree with the Court’s use of the term “actually innocent” when granting relief under Elizondo; simply satisfying the Elizondo burden is not enough to prove literal “actual innocence.” See Ex parte Cacy, 543 S.W.3d 802, 803 (Tex. Crim. App. 2016) (Yeary, J., concurring) (“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.”). Still, I am persuaded that Applicant is, in fact, “actually innocent” in an “absolute sense,” as described by my concurring opinion in Ex parte Warfield, 618 S.W.3d 69, 74 (Tex. Crim. App. 2021) (Yeary, J., concurring). On that basis, I respectfully concur. FILED: DO NOT PUBLISH April 19, 2023
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