In the Court of Criminal Appeals of Texas ══════════ No. WR-28,073-02 ══════════
EX PARTE JAMES HARRY REYOS, Applicant
═══════════════════════════════════════ On Application for Writ of Habeas Corpus In Cause No. A-14,583-B In the 70th District Court Ector County ═══════════════════════════════════════
YEARY, J., filed a concurring opinion.
Applicant was convicted of murder and sentenced to thirty-eight years’ imprisonment in 1983. His conviction was affirmed by the Eighth Court of Appeals the following year. Reyos v. State, No. 08-83-0026-CR (Tex. App.—El Paso, Nov. 21, 1984). Applicant made this application this year, in 2023, on the grounds that new evidence proves he is
REYOS – 2
actually innocent. Today the Court grants Applicant post-conviction habeas relief based on his claim of actual innocence. In my view, Applicant has satisfied the burden established in Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). The new fingerprint evidence alone is enough to reach that conclusion. 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.”). Because I am persuaded Applicant has met his burden under Elizondo, I respectfully concur.
FILED: October 4, 2023 DO NOT PUBLISH