Johnson, Allen Maurice

In the Court of Criminal
Appeals of Texas
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No. WR-94,542-01
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EX PARTE ALLEN MAURICE JOHNSON,
Applicant
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On Application for a Writ of Habeas Corpus
Cause No. 20508-B(1) in the 104th District Court
From Taylor County
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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: April 19, 2023
DO NOT PUBLISH