Ex parte Stevens , 963 S.W.2d 75 ( 1997 )

OVERSTREET, Judge,

dissenting.

Applicant seeks habeas corpus relief on his conviction for aggravated sexual assault. He raises a claim of actual innocence based upon the recantation of the child victim who testified against him at trial. Testifying before the habeas court judge, who was also the judge at the trial, the child now insists that applicant did not commit the offense. The habeas judge, after hearing the testimony, recommends that relief be granted. The majority, for reasons unknown, denies this writ application without a written order. To that action I dissent.

We oftentimes say that in writ application situations the habeas judge is in the best position to determine facts, because the judge is observing the witnesses and actually hearing the testimony. That is why habeas judges issue findings of fact — because they are in the best position to make those factual determinations. In fact, this Court oftentimes remands writ applications to the habe-as judge with specific instructions to make fact findings and determinations, to help us make a fair and accurately informed decision ourselves.

This Court, in an opinion authored by Presiding Judge McCormick, has recently even explicitly stated, “If the issue involves the credibility of a witness, thereby making the evaluation of that witness’ demeanor important, compelling reasons exist for allowing the trial court to apply the law to the facts.” Guzman v. State, 955 S.W.2d 85, 87 (Tex.Cr. App.1997). Guzman added, that as a general rule this Court “should afford almost total deference to a trial court’s determination of the historical facts that the record supports[,] especially when the trial court’s fact findings are based on an evaluation of credibility and demeanor.” Id., 955 S.W.2d at 88, slip op. at 9. Yet in this case, which is a classic example of a credibility and demeanor evaluation, the majority, without explanation, chooses not to accept the habeas trial judge’s fact findings.

In this case the record clearly supports the habeas trial judge’s fact findings and recommendation that relief be granted. The majority should tell the bench and bar precisely why it refuses to give deference to and rejects those findings and that recommendation in this case. As a former trial judge myself, I know full well that the person sitting in the courtroom is in the best position to determine witness credibility. And pursuant to our own holdings, that determination, when supported by the record, should be respected by this Court.

Because the majority, without explanation, refuses to honor its very own recent precedent on this issue, I respectfully dissent to such dishonor.

BAIRD and MEYERS, JJ., join.