IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




No. 1057-01

 

JACKIE RUSSELL KEETER, Appellant


v.



THE STATE OF TEXAS




ON STATE'S PETITION FOR DISCRETIONARY REVIEW

FROM THE TENTH COURT OF APPEALS

HAMILTON COUNTY


Holcomb, J., filed a dissenting opinion in which Price and Johnson, JJ., joined. Meyers, J., joins part I of the dissenting opinion with a note.



OPINION



I



Texas Constitution article V, 6, provides that "the decision of [the] courts [of appeals] shall be conclusive on all questions of fact brought before them on appeal or error." In Meraz v. State, 785 S.W.2d 146 (Tex.Crim.App. 1990), and later in Johnson v. State, 23 S.W.3d 1 (Tex.Crim.App. 2000), we recognized that the Conclusivity Clause means what it says, i.e., the courts of appeals' decisions on factual sufficiency are conclusive. In Clewis v. State, 922 S.W.2d 126 (Tex.Crim.App. 1996), we recognized the authority and responsibility of the courts of appeals to conduct factual sufficiency reviews, and we set forth the manner in which such reviews are to be conducted. So far we have only applied factual sufficiency review to a limited number of situations. See, e.g., Meraz, 785 S.W.2d 146; Clewis, 922 S.W.2d 126. I believe we should extend those holdings to this context. Whenever a court of appeals considers a fact-bound question, like a motion for a new trial, its decision should be final. Thus, I would address this case in the following manner.

When considering a motion for new trial based on material evidence, a trial court must determine whether the elements of Texas Code of Criminal Procedure article 40.001 are met. On review, the court of appeals' role is to determine whether the record evidence reasonably supports the trial court's decision.

Here, the court of appeals essentially applied the correct standard of review. After considering all of the evidence presented at trial and at the new trial hearing, the court of appeals concluded that the trial court abused its discretion, i.e., that the record evidence did not support the trial court's decision. Keeter v. State, 43 S.W.3d 667, 676 (Tex.App.-Waco 2001) ("Based on the evidence both at trial and the hearing, we find that the evidence does not support the trial court's finding ... ."). Because the courts of appeals are the final arbiters of factual issues and the court of appeals below applied the correct standard of review, it is unconstitutional for this Court to conduct its own factual review. Therefore, I respectfully dissent.

II

Alternatively, I would hold that the majority opinion is unconstitutional for another reason. Texas Code of Criminal Procedure article 40.001 provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." (Emphasis added.) The majority, after concluding that the statute is ambiguous, holds that a trial court's decision to deny an Article 40.001 motion based on a recantation should be upheld if there is some basis in the record for disbelieving the recantation.

Because I conclude that: (1) the statute is unambiguous, (2) the test adopted by the majority unconstitutionally (1) amends an unambiguous statute, and (3) under the test supplied by the Legislature, a new trial must be granted where recanted testimony is the sole basis of conviction, I must respectfully dissent.

A.

On April 10, 2000, appellant, Jackie Russell Keeter, was tried for indecency with a child and aggravated sexual assault. See Tex. Pen. Code 21.11 & 22.021. During the guilt/innocence phase of the trial, the State presented evidence that appellant sexually molested his girlfriend's eight-year-old daughter, J.K. The State's entire case consisted of the testimony of three witnesses: J.K., Rhonda King (J.K's stepmother), and Jim Buster (a criminal investigator). (2)

J.K. was the first witness called by the State. She testified that appellant "put his finger into [her] private" and "put his private into [her] private." She further testified that he molested her "almost every day" and that Rhonda King was the first person she informed about the abuse.

Next, the State called Rhonda King to testify. She testified that "[J.K.] told me that [appellant] was touching her and doing things to her that he should not have been doing." More specifically, she testified that J.K. told her that appellant would "put his hand down her panties" and "made her touch him."

Finally, the State called Jim Buster to the stand. He testified that he investigated, in his capacity as a criminal investigator for the Hamilton County Sheriff's Office, an allegation of sexual abuse made by J.K. to Rhonda King. He further testified that he interviewed J.K. and that her account of the events was "pretty much parallel" to the story that Rhonda King had told him. After Buster finished testifying, the State rested its case.

In sum, the statements made by J.K. were the only evidence presented by the State. The State did not present any eyewitnesses, nor did it produce any physical evidence, nor was there any medical testimony.

At the conclusion of the trial, the jury found appellant guilty of indecency with a child and assessed punishment at imprisonment for life.

On May 9, 2000, appellant filed a motion for new trial. In support of his motion, appellant offered a signed affidavit from J.K., wherein she completely recanted her trial testimony. (3) Specifically, she swore that "[she] did not tell the truth about [appellant] touching [her]," that she fabricated the story because she wanted to live with her father during the summer, (4) and that she lied at trial because "[she] was scared to tell the truth after [she] had already told everyone the story."

On May 30, 2000, the trial court held a hearing to consider appellant's motion. At the hearing, Rhonda King and Travis King (J.K's father) testified that (1) they did not believe that appellant was guilty and (2) they did not believe that J.K. testified truthfully at trial. (5) Eva King (J.K.'s mother) also testified to that effect and further testified that, subsequent to the trial, J.K. told her that she lied at the trial.

Next, the State called J.K., who testified, in relevant part, as follows:

Q. And you told the truth last time [at trial], too, didn't you?



A. No, sir.



Q. I'm sorry?



A. No, sir.



* * * * * *

A. About the whole thing.



Q. I am sorry, [J.K.], I just can't hear you, baby. I need you to talk a little louder.



A. About the whole thing.



Q. About what?



A. About the whole thing.



On cross:



Q. [J.K.], when you made that statement two years ago about [appellant] touching you in your private places, was that true?



A. No, sir.



Q. I'm sorry?



A. I mean no, ma'am.



Q. Okay. And when you came to my office you told me that; is that correct?



A. Yes, sir - I mean yes, ma'am.



* * * * * * Q. And you told me that you - you basically told a lie when you testified when you testified in court; is that right?



A. Yes, ma'am.



Q. And even though the Judge told you to tell the truth, that you lied because you were afraid; is that right?



A. Yes, ma'am.



Q. Because you thought you would get in real trouble if you finally told the real truth, is that right?



A. Yes, ma'am.



Q. And the real truth is that [appellant] never did touch you; is that correct?



A. Yes, ma'am.



Q. Did anybody threaten you to make you say that?



A. No, ma'am.



At the conclusion of the hearing, the trial court denied appellant's motion for a new trial because he did not find the recantation to be credible. (6)

On appeal, appellant argued, among other things, that the trial court erred in failing to grant a new trial in light of J.K.'s complete recantation of her testimony at trial. The Tenth Court of Appeals agreed with appellant and held that the trial court abused its discretion in denying the motion for new trial. Keeter, 43 S.W.3d 667. In so holding, the Court of Appeals applied the following "test":

"Motions for new trial based on newly discovered evidence, including recanted testimony, are governed by art. 40.001, which states that 'A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.' The standard of review for the denial of a motion for a new trial is abuse of discretion, i.e., whether the denial was arbitrary or unreasonable. The trial court is arbitrary or unreasonable in denying the motion if the record reflects: (1) the newly discovered evidence was unknown to the movant at the time of trial; (2) the movant's failure to discover the evidence was not due to his want of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial. In cases where a witness has testified to material inculpatory facts against an accused and after verdict, and before motion for new trial has been acted on, such witness makes affidavit that he testified falsely, the general rule is that the new evidence is probably true and a new trial should be granted. An exception to the general rule occurs when the trial court finds the recantation to not be credible based on the trial evidence and the evidence at a hearing on the motion. 'Credibility' is measured by whether the recantation is 'probably true.'" Id. at 673-674 (citations and some punctuation omitted).



The Tenth Court held that "the evidence [presented at the trial and at the hearing] does not support the trial court's finding that J.K.'s recantation was not credible." Id. at 676.

We granted the State's petition for discretionary review to determine whether the Court of Appeals erred. See Tex. R. App. Proc. 66.3. In its brief to this Court, the State argues that the Court of Appeals erred in failing to give almost total deference to the trial court's ruling. In support of its argument, the State cites State v. Ross, 32 S.W.3d 853, 856 (Tex.Crim.App. 2000), and Guzman v. State, 955 S.W.2d 85, 86 (Tex.Crim.App. 1997).

The majority adopts the "test" set forth by the Court of Appeals, but the majority adds a wrinkle. The last line in the Court of Appeals' test provides that "[c]redibility is measured by whether the recantation is probably true." The majority then, in essence, adds one more line: A recantation is not "probably true" if there is some basis in the record for disbelieving the recantation. See majority opinion at 10-11.

However, neither the test proposed by the State, nor the one set forth by the Court of Appeals and expanded upon by the majority, is appropriate when analyzing a motion for a new trial based on material evidence.

B.

"Where [a] statute is clear and unambiguous, the Legislature must be understood to mean what it has expressed, and it is not for the courts to add or subtract from such a statute." Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991). Texas Code of Criminal Procedure article 40.001 provides that "[a] new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial." (Emphasis added.) These words are crystal clear. There is no doubt as to their meaning, and thus, no need to consider extratextual factors. Under the test supplied by the Legislature, if a convicted person can show three elements - (1) there is material evidence, (2) it is favorable, and (3) it has been discovered since trial - the trial court must grant the motion for a new trial. The trial court's role in such an instance is merely to determine whether the three elements are met. On review, the court of appeals' only role is to consider whether the trial court abused its discretion, i.e., whether a reasonable trial judge could have concluded that the three elements were or were not met. It is as simple as that. There is no ambiguity, and there is no credibility requirement.

The majority, however, concludes that, because the language of Article 40.001 is "ambiguous," it is necessary to look to extratextual factors in determining the statute's meaning. In addition, the majority concludes that since Article 40.001 is substantially similar to a previous statute, Article 40.03, we should interpret Article 40.001 in conformity with the caselaw that interpreted Article 40.03. I disagree with both of those conclusions.

First of all, the statute and the key word therein ("material") are not ambiguous. "Material" simply means "important." Black's Law Dictionary defines "material" as "important." Black's Law Dictionary 747 (6th ed. 1990); see also Ballentine's Law Dictionary 781 (3rd ed. 1969) (defining "material" as "important"). Similarly, Webster's Ninth New Collegiate Dictionary defines "material" as "having real importance or great consequences." Webster's Ninth New Collegiate Dictionary 733 (9th ed. 1988); see also The Compact Edition of the Oxford English Dictionary 1742 (1971) (defining "material" as "of serious or substantial import, of much consequence; important."). In support of its conclusion that the statute is ambiguous, the majority cites the United States Supreme Court's decision in U.S. v. Bagley, 473 U.S. 667 (1985). In that decision, however, a majority of the Supreme Court does not conclude that the word material is ambiguous. It held that nondisclosed evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. Id. at 682; accord Ex parte Brandley, 781 S.W.2d 886, 893 (Tex.Crim.App. 1989). That is merely another way of saying that material evidence means important evidence. If the result of the proceeding would have been different had the evidence been disclosed, then such evidence is obviously important.

Secondly, our caselaw interpreting Article 40.03 was implicitly overruled by Boykin, and thus, we cannot constitutionally (7) interpret Article 40.001 in conformity with our caselaw that interpreted old Article 40.03. Old Article 40.03 provided that "[n]ew trials, in cases of felony, shall be granted the defendant ... [w]here new evidence material to the defendant has been discovered since the trial." Those words were clear and unambiguous. The article set forth a two part test: a trial court shall grant a new trial based on new evidence if (1) the evidence is material and (2) the evidence was discovered since trial. The majority correctly notes that "[w]e consistently interpreted [article 40.03(6)] as requiring the satisfaction of a four part test." (8) See majority opinion at 8-9. The last prong of that test contains the requirement that the evidence be "probably true," which we further interpreted to mean that such evidence be "credible." See Jones v. State, 711 S.W.2d 35, 36-37 (Tex.Crim.App. 1986).

But, because Article 40.03 was clear and unambiguous, we were obliged to give effect to its plain meaning, and we were not free to add to or subtract from it. Boykin, 818 S.W.2d at 785. Article 40.03 did not contain any diligence requirement, any "probably true" requirement, nor did it contain any requirement that the evidence be credible. Thus, to the extent that those cases held otherwise, they were implicitly overruled by Boykin.

Similarly, Article 40.001 is clear and unambiguous. Hence, there is no need to consider extratextual factors, i.e., there is no need to interpret Article 40.001 "in conformity with our prior caselaw and continue to adhere to the four-part test." In doing so, the majority essentially adds a credibility requirement to the test supplied by the Legislature. But credibility is not part of the test. Article 40.001 does not contain any requirement that new material evidence must be "probably true" or that it must be credible. Perhaps it should. (9) But it does not. If a statute is clear on its face, as this one is, we must follow it. Boykin, 818 S.W.2d at 785. We are not free to add to or subtract from a statute just because we do not agree with it. Id. (10)

Furthermore, the test adopted by the majority is unworkable and makes little sense. The test begins with the "general rule" that "where a witness has testified to material inculpatory facts against an accused and after verdict, and before motion for new trial has been acted upon, such witness makes affidavit that he testified falsely, a new trial should be granted." Majority opinion at 10; quoting Williams v. State, 375 S.W.2d 449, 451 (Tex.Crim.App. 1964). That sounds clear enough. But, the test then goes on to provide that a trial court does not abuse its discretion in denying a motion for a new trial based on a recantation of incriminating testimony if there is some basis in the record for disbelieving the recantation. The problem with such a test is that there will always be some basis in the record for disbelieving a recanting witness. The mere fact that the witness is recanting provides some basis for disbelief. Hence, under the test provided by the majority, a defendant who loses in the trial court can never succeed on appeal. (11) Thus, the "test" is not a test at all. (12)

C.

In determining whether the Court of Appeals erred, I would review their decision in light of the test set forth by the Legislature in Article 40.001. Under that test, if a convicted person can show three elements - (1) there is material evidence, (2) it is favorable, and (3) it has been discovered since trial - the trial court must grant the motion for a new trial. On review, the court of appeals' only role is to consider whether the trial court abused its discretion, i.e., whether a reasonable trial judge could have concluded that the three elements were or were not met.

Based on the evidence presented in this case, a reasonable trial judge would necessarily have concluded that appellant satisfied the three elements in Article 40.001. The evidence was discovered since trial, as J.K recanted shortly after the trial concluded. The recantation was clearly favorable evidence, as J.K. now claimed that appellant did not abuse her. Finally, the recantation was material evidence. In this case, the only evidence presented was J.K.'s statements. Without her statements there is no evidence to support appellant's conviction. (13) In such an instance, where recanted testimony is the sole basis for the conviction, the recantation is always material (i.e. important) and, thus, it is an abuse of discretion not to grant the motion for a new trial. Green v. State, 252 S.W. 499 (Tex.Crim.App. 1923) (opinion on original submission) ("[W]hen the State is compelled to rely for its conviction upon the testimony of a witness who afterward and before the motion for new trial is acted upon, retracts the truth of said testimony and himself appears before the court and under oath affirms that the testimony as given by him originally was not true, and when the facts show that without such testimony the State has no case, the conviction should be set aside."); accord Robinett v. State, 494 So.2d 952, 955 (Ala.Crim.App. 1986) ("[W]hen a defendant is convicted solely on the testimony of the now recanting witness, it would be an abuse of discretion not to allow a new trial."); State v. Rolax, 529 P.2d 1078, 1079 (Wash. 1974) ("When a defendant is convicted solely on the testimony of the now recanting witness, this court has squarely held that it is an abuse of discretion not to grant a new trial."); Commonwealth v. Mosteller, 284 A.2d 786, 788 (Pa. 1971) (Where recanting witness "gave the only testimony which could possibly have led to appellant's conviction," "it was a clear abuse of discretion not to award a new trial under these circumstances and thereby allow a new jury to pass on the child prosecutrix's credibility."). This Court's predecessor recognized this very same principle in Mann v. State, 44 Tex. 642 (1876). There the Texas Supreme Court held that where the main prosecuting witness recanted, "the guilt of the appellant was left too uncertain ... to justify the court in refusing him another trial." Id at 644. The only difference between the present case and Mann is that in Mann there was at least some other evidence. Here, there is none. Therefore, appellant is entitled to new trial.

On the other hand, if there is sufficient evidence to support the conviction without the recanted testimony, then it is reasonable to conclude that the recantation is not material. However, if there is no other evidence to support the conviction, then the recantation is necessarily material, i.e., important. Why? Because it undermines our confidence in the outcome of the proceeding. We are left wondering whether the witness was lying at trial or is lying now. In such an instance, a jury should be allowed to determine credibility.

The court of appeals correctly concluded that the trial court abused its discretion in not granting the motion for new trial. Accordingly, I would affirm the judgment of the court of appeals.



FILED MAY 1, 2002

PUBLISH



Meyers, J., dissents with a note: I join Part I of Judge Holcomb's dissenting opinion. I would leave the decision of the Court of Appeals undisturbed. In this case, the Court of Appeals determined that the trial court abused its discretion by denying appellant's motion for new trial. Although I agree with majority that we owe deference to the trial court's ruling on such a motion, I disagree that this relieves us of the deference we owe our intermediate appellate courts. To overrule the Court of Appeals in a case such as this, in which the court properly applied the law to the facts, is to obviate the need for the Court of Appeals to rule at all. Because I believe this Court should not sit as the Fifteenth Court of Appeals, I dissent.

1. In Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App. 1991), we explained that "[w]hen we interpret statutes ... we seek to effectuate the 'collective' intent or purpose of the legislators who enacted the legislation. We do so because our state constitution assigns the lawmaking function to the Legislature while assigning the law interpreting function to the Judiciary." (Some punctuation omitted). See also Tex. Const. art. II, 1.

2. For a more detailed discussion of the testimony presented by both the State and the defense, see Keeter v. State, 43 S.W.3d 667 (Tex.App.- Waco 2001).

3. Additionally, appellant offered a signed affidavit from Rhonda King, wherein she stated that she did not believe that J.K. testified truthfully and that J.K changed her story "to [sic] many times."

4. At the time, J.K. was living with her mother and appellant.

5. Additionally, both Travis and Rhonda testified at the hearing that prior to the trial they informed the District Attorney that they did not believe J.K. was telling the truth. Indeed, in his motion for a new trial, appellant argued that the prosecution withheld exculpatory evidence. However, because the Court of Appeals granted relief on the recantation issue, it did not consider appellant's second claim.

6. One of the trial court's specific reasons for not believing J.K' s recantation was that it "would require [him] to believe that [J.K.] made up her testimony because her sister told her she would have to make something up ... ." (At the time, J.K.'s younger sister was three years old.) The majority also offers that reason as a basis in the record for disbelieving J.K.'s recantation. Majority opinion at 13. This is, however, much ado about nothing.

First of all, J.K. was a young child herself, and we do not expect everything a young child says to make perfect sense. Secondly, it is by no means clear, when considering her affidavit and the testimony adduced at the hearing, that J.K. even claimed such a thing. In her affidavit she states, in relevant part, as follows:



"I wanted to stay with my father for the summer in 1998. My little sister, Jennifer, said my mom said I couldn't unless something happened. I decided to make something happen. I had made friends with a girl, and she told me how men make women happy, and about what they do. I decided to tell my dad that [appellant] touched me in my private places. I thought that when my dad took me back to my mom I would tell her that nothing happened, I just wanted to stay with my dad for the summer. But he never took me back, so I couldn't tell her.

I told a lie in Court because I was scared to tell the truth after I had already told everyone the story, and my step-mom told me if I lied, I would go to juvenile hall. I thought if I told the truth, everyone would know I lied before, and I would be in trouble. I waited until my dad took me back to my mom last week, and told her the truth then. I didn't know [appellant] would get into trouble.



Her statement about her little sister (and her testimony at the hearing concerning her little sister) is ambiguous at best. Moreover, at the hearing, J.K specifically states that it was her best friend, not her little sister, who told her what to say.

Finally, even if J.K. claimed that her three-year old sister told her to make-up the story, it does not matter. As the majority correctly notes, such a claim would bear upon the credibility of J.K. Credibility, however, is not part of the test supplied by the Legislature. See discussion infra.

7. See infra note one.

8. The four-part test is whether (1) the newly discovered evidence was unknown to the movant at the time of trial; (2) the movant's failure to discover the evidence was not due to his want of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial. Ayers v. State, 606 S.W.2d 936, 941 (Tex.Crim.App. 1980).

9. But see Green v. State, 252 S.W. 499 (Tex.Crim.App. 1923) (opinion on rehearing) ("It seems to us that the reason for granting a new trial in such case goes deeper and rests on the proposition that a citizen should not be punished or deprived of his life or liberty upon the testimony of one whose veracity is thus shown to be wanting."); Harris L. Beach, Jr., Recanted Testimony: The Red-headed Stepchild of Criminal Trial Practice, 8 S. Carolina Lawyer 40, 43 (1997):



"Other states' courts have granted a new trial when the recanted testimony comes from the sole prosecuting witness and the remaining evidence, alone, is not adequate to uphold a conviction. Some of these courts have held that it is an abuse of discretion not to grant a new trial in such a situation and that the issue of the witness' credibility should be left to a jury. Bussey v. State, 69 Ark. 545, 64 S.W. 268 (1901); People v. Smallwood, 306 Mich. 49, 10 N.W. 2d 303 (1943); Commonwealth v. Mosteller, 446 Pa. 3, 284 A.2d 786 (1971); State v. York, 41 Wash. App. 538, 704 P. 2d 1252 (1982); Meyers v. State, 111 Ark. 399, 163 S.W. 1177 (1914); Robinette v. State, 494 So.2d 952 (Ala. App. 1986); Solis v. State, 262 So.2d 9 (Fla. App. 1972); State v. Rolax, 84 Wash. 2d 836, 59 P.2d 1078 (1974). (All of these cases resulted in a new trial because the recanted testimony was the only evidence of guilt.)." (Emphasis added).

10. Cf. Cuellar v. State, __ S.W.3d __ (Tex.Crim.App. Feb. 13, 2002) (where statute provided only two listed exceptions, only the Legislature could add other exceptions); Tyra v. State, 897 S.W.2d 796, 799 (Tex.Crim.App. 1995) (even though application of clear statute "seems unwise or unfair," we must follow the law as it is actually written).

11. Cf. Janice J. Repka, Comment, Rethinking the Standard for New Trial Motions Based Upon Recantations As Newly Discovered Evidence 134 U.Pa.L.Rev. 1433, 1445 (1986):

"[W]hile the courts indulge the strong presumption that all recantations are somehow tainted, they do not articulate clearly how a defendant may rebut this presumption. Such a presumption may not be rebuttable at all in many factual situations in which the conviction is based mainly on the recanting witness's original trial testimony without substantial corroborating evidence. For example, a court may refuse to believe the recantation of a rape victim, yet what more could a defendant do than to have the victim swear she made up the crime? (Footnotes and some punctuation omitted)

12. In fact, except for the Court of Appeals below, all the Courts of Appeal in Texas who have considered this issue, under article 40.001, have found there was no abuse of discretion. See, e.g., Quinton v. State, 56 S.W.3d 633 (Tex.App-Waco 2001) (even though witness recanted, trial court did not abuse its discretion in denying the motion for new trial); Monse v. State, 990 S.W.2d 315 (Tex.App.-Corpus Christi 1999) (same); Ashcraft v. State, 918 S.W.2d 648 (Tex.App.-Waco 1996) (same); Driggers v. State, 940 S.W.2d 699 (Tex.App.-Texarkana 1996) (same).

13. In most of the cases cited in note twelve, there was at least some other additional evidence to support the conviction. See Quinton, 56 S.W. 3d at 639 (there was some medical evidence); Monse, 990 S.W.2d at 318 (defendant's confession was sufficient to support his conviction); Ashcraft, 918 S.W.2d 648 (there was some medical evidence).