Ex Parte Valentino Franco v. the State of Texas

Opinion filed April 30, 2025

In The

Eleventh Court of Appeals
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No. 11-24-00023-CR
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EX PARTE VALENTINO FRANCO

On Appeal from the 358th District Court
Ector County, Texas
Trial Court Cause No. D-43,117-A

MEMORANDUM OPINION
Appellant, Valentino Franco, appeals the trial court’s order denying his
application for a writ of habeas corpus filed pursuant to Article 11.072 of the Texas
Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.072 (West
Supp. 2024). In three issues, Appellant contends that: (1) the trial court erred in
determining that his writ claim was barred by laches; (2) he provided sufficient
evidence of his actual innocence; and (3) the State violated his due process rights by
using false testimony to obtain his conviction. We affirm.
Factual and Procedural History
Appellant was charged by indictment for committing the second-degree
felony offense of robbery on or about August 9, 2013, and pleaded not guilty. See
TEX. PENAL CODE. ANN. § 29.02 (West 2019).
At trial, the complainant, Atanacio Garcia, testified that Appellant had been
selling leather jackets out of his vehicle in a Walmart parking lot. Garcia agreed to
purchase four jackets for $100 apiece, but as Garcia handed Appellant the cash,
Appellant took the money but, without delivering the jackets, began pushing Garcia
away. Garcia testified that in response, he took hold of “something” on Appellant’s
shirt and then lost his footing. Garcia fell to the ground, scrapping his elbow and the
left side of his head in the process, while Appellant drove away. During the struggle,
Garcia had managed to grab Appellant’s wallet, which contained Appellant’s
passport with his identifying information. Appellant’s wallet and passport were
admitted into evidence, along with photographs of Garcia’s injuries.
Appellant challenged Garcia’s version of events at trial; he testified that he
was seated inside his vehicle when Garcia approached him “yelling,” demanding a
refund. Appellant stated that although he had been selling leather jackets out of his
vehicle that day, he had not sold any to Garcia and told Garcia that perhaps he had
confused him with another seller. According to Appellant, Garcia then tried to grab
his passport, the two men had a “discussion,” and Appellant drove away at its
conclusion. Appellant denied ever accepting money from Garcia, pushing Garcia,
or witnessing Garcia fall to the ground.
On August 20, 2015, the jury found Appellant guilty of robbery. The
following day, the jury assessed Appellant’s punishment at imprisonment for five
years in the Institutional Division of the Texas Department of Criminal Justice but

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recommended suspending his sentence and placing him on community supervision
for a period of five years. The trial court followed the jury’s recommendation, and
sentenced Appellant accordingly. Appellant was released from community
supervision in August 2020.
On March 3, 2023, eight years following his conviction, the Department of
Homeland Security initiated removal proceedings against Appellant on the grounds
that his conviction of robbery, a crime of moral turpitude, rendered him removable
from the United States.1 See 8 U.S.C. § 1182(a)(6)(A)(i) (West Supp. 2024). Three
months later, Appellant sought habeas corpus relief from the 2015 robbery
conviction and order of community supervision. Appellant filed his application for
writ of habeas corpus in the trial court, asserting an actual innocence claim based on
Garcia’s recant of his trial testimony. See CRIM. PROC. art. 11.072. Appellant
attached several exhibits to his application, including: (1) Garcia’s trial testimony
transcript; (2) Appellant’s trial testimony transcript; (3) an affidavit signed by
Garcia; and (4) the transcript from Appellant’s immigration proceeding. The State
did not file a response to Appellant’s application for writ of habeas corpus. See id.
art. 11.072 § 5(b).
The attached affidavit read in its entirety:
My name is Atanacio Garcia. I am over the age of 18 and am competent
to make this affidavit. I have read the facts below and they are within
my personal knowledge and are true and correct.

I am writing this statement to correct a mistake I made in my testimony
in the robbery case involving [Appellant]. I now realize that my
previous testimony was misleading and incorrect. I want to make clear
that I was not involved in a robbery with [Appellant].

1
Appellant is a citizen of Italy and a permanent resident of the United States.

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In truth, what happened that day was simply a dispute over a jacket. I
was angry at the time and acted impulsively, but I never intended for
[Appellant] to be convicted of a crime he didn’t commit. It is important
for me to set the record straight now and rectify the wrongful conviction
of [Appellant]. I deeply regret my actions and the harm they have
caused. I hope this statement can bring justice to [Appellant] and clear
his name. Thank you for your time and attention.

During Appellant’s removal proceedings, Garcia testified at a merits hearing,
and denied that Appellant had taken his money by force or assaulted him on the day
in question. When asked why he was testifying at the hearing, Garcia responded:
Because [Appellant’s wife] has been coming to -- came to my house
and begged to -- for me to come and speak in [sic] behalf of [Appellant]
over here. And he’s -- she’s been calling my wife. So I just want to
get everything done and finished.
On cross-examination, Garcia clarified that he had not been paid to recant his
testimony, nor had he been threatened or coerced into recanting. But Garcia later
reiterated that Appellant’s family had contacted him “a handful” of times and
expressed that he was “afraid” of “retaliation.” Garcia explained that he was
changing his previous sworn testimony because he “felt sorry for [Appellant’s]
kids,” and reaffirmed his recantation when questioned by the immigration judge.
On December 11, 2023, the trial court conducted a hearing on Appellant’s
application; Garcia was the only witness. Garcia agreed that he had signed an
affidavit prepared by Appellant’s wife or lawyer declaring that his testimony at trial
had been “misleading.” He had agreed to sign the affidavit after Appellant’s wife
“showed up one evening to [his] house.” Garcia testified that she had “approached
[his] house twice and called [him] maybe a handful” of times, and that he had
concerns about retaliation. Garcia testified that he had “no idea” how she knew

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where to reach him. When asked why the trial court should believe his habeas
testimony as opposed to what he testified to at Appellant’s trial, Garcia merely
stated, “I was mad. Frustrated.” When questioned by the trial court, Garcia
confirmed that throughout the process of reporting the offense to police at the police
station, speaking to investigators and the prosecutor, and testifying at trial under
oath, he never told anyone that “this really didn’t happen.”
The trial court denied Appellant’s requested habeas relief. As part of its
written findings of fact and conclusions of law, the trial court concluded that the
doctrine of laches barred Appellant’s habeas application. The trial court continued
that, “even considering the substance of [Appellant]’s ground for relief,” Appellant
failed to put forth newly discovered evidence of actual innocence.2 With regard to
Appellant’s actual innocence claim, the trial court found that “the circumstances
under which Garcia’s affidavit was procured casts doubt upon the credibility of the
statements contained therein.” The court additionally found that “Garcia’s affidavit
is not a ‘recanting’ of his trial testimony”; “the claims [Appellant] brings in the
present habeas application were essentially [Appellant’s] defensive theory at trial”;
and “Garcia’s affidavit does not constitute new evidence.”
Standard of Review
“Article 11.072 is ‘the exclusive means by which the district courts may
exercise their original habeas jurisdiction under Article V, Section 8, of the Texas
Constitution’ in cases involving an individual who is serving a term of community
supervision.” Ex parte Torres, 483 S.W.3d 35, 42 (Tex. Crim. App. 2016) (quoting
Ex parte Villanueva, 252 S.W.3d 391, 397 (Tex. Crim. App. 2008)). In a post-

2
Appellant did not seek habeas relief claiming a due process violation so the argument, though
made on appeal, was not addressed in the trial court’s findings and conclusions.

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conviction writ application filed pursuant to Article 11.072, “the trial court is the
sole finder of fact, and the reviewing court acts only as an appellate court.” Ex parte
Sanchez, 625 S.W.3d 139, 144 (Tex. Crim. App. 2021). As such, when reviewing a
ruling on an application for writ of habeas corpus, we view the facts in the light most
favorable to the trial court’s ruling and will ordinarily uphold it absent an abuse of
discretion. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006); Ex parte
Afolabi, No. 11-22-00342-CR, 2024 WL 2061266, at *6 (Tex. App.—Eastland
May 9, 2024, no pet.) (mem. op., not designated for publication). In this setting, we
afford almost total deference to a trial court’s factual findings when they are
supported by the record, especially when those findings are based upon the trial
court’s assessments of credibility and demeanor. Torres, 483 S.W.3d at 42; see Ex
parte Garcia, 353 S.W.3d 785, 788 (Tex. Crim. App. 2011) (“There is less leeway
in an article 11.072 context to disregard the findings of a trial court. Because the
court of appeals and this Court are truly appellate courts in the article 11.072 context,
it makes sense as a matter of logic that the Guzman standard would control.”)
(footnote omitted).
“To prevail on a post-conviction writ of habeas corpus, the applicant bears the
burden of proving, by a preponderance of the evidence, the facts that would entitle
him to relief.” Ex parte Richardson, 70 S.W.3d 865, 870 (Tex. Crim. App. 2002);
see Ex parte Torres, 483 S.W.3d at 43. In habeas corpus proceedings, “[v]irtually
every fact finding involves a credibility determination” and “the fact finder is the
exclusive judge of the credibility of witnesses.” Ex parte Mowbray, 943 S.W.2d
461, 465 (Tex. Crim. App. 1996); see Torres, 483 S.W.3d at 42. In its fact-finding
role, the trial court may accept or reject all, part, or none of any witness’s testimony.
See Guerrero, 400 S.W.3d at 583. We will uphold the trial court’s ruling and

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judgment if it is correct on any theory of law that is applicable to the case. Ex parte
Taylor, 36 S.W.3d 883, 886 (Tex. Crim. App. 2001); see Diamond v. State, 613
S.W.3d 536, 544–45 (Tex. Crim. App. 2020); Ex parte Beck, 541 S.W.3d 846, 852
(Tex. Crim. App. 2017).
Clear and Convincing Evidence of Actual Innocence Needed
In his second issue, which we address first because it is dispositive, 3 Appellant
argues that he proved by clear and convincing evidence that he is actually innocent
and no jury would have convicted him of robbery following Garcia’s recantation.
Establishing an actual innocence claim “is a Herculean task.” Ex parte Brown,
205 S.W.3d 538, 545 (Tex. Crim. App. 2006); Ex parte Meredith, No. 11-17-00016-
CR, 2017 WL 2986847, at *5 (Tex. App.—Eastland July 13, 2017, no pet.) (mem.
op., not designated for publication). There are two types of actual innocence claims.
Ex parte Navarijo, 433 S.W.3d 558, 567 n.2 (Tex. Crim. App. 2014) (citing Ex parte
Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002)). The first is a “freestanding
innocence claim, also known as a Herrera–type claim,” which is based solely on
newly discovered evidence. Id.; see Herrera v. Collins, 506 U.S. 390, 417 (1993).
The second is a Schlup-type claim, which is a “procedural claim in which applicant’s
claim of innocence does not provide a basis for relief, but is tied to a showing of
constitutional error at trial.” Ex parte Navarijo, 433 S.W.3d at 567 n.2 (quoting Ex
parte Franklin, 72 S.W.3d at 675); see Schlup v. Delo, 513 U.S. 298, 314 (1995).

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“The court of appeals must hand down a written opinion that is as brief as practicable but that
addresses every issue raised and necessary to final disposition of the appeal.” TEX. R. APP. P. 47.1; Ex
parte Barnum, No. 11-22-00029-CR, 2023 WL 7028437, at *6 (Tex. App.—Eastland Oct. 26, 2023, pet.
ref’d) (mem. op., not designated for publication). Other issues being dispositive, we do not address
Appellant’s laches issue or the trial court’s ruling regarding same.

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When, as here, an applicant asserts a Herrera-type actual innocence claim, the
habeas applicant must demonstrate by clear and convincing evidence that no
reasonable juror would have found him guilty in light of the new evidence. Ex parte
Navarijo, 433 S.W.3d at 560; Ex parte Franklin, 72 S.W.3d at 678. The “new”
evidence, when balanced against the “old” inculpatory evidence, must
unquestionably establish the applicant’s innocence. Ex parte Brown, 205 S.W.3d at
546. The term “newly discovered evidence” refers to evidence that was not known
to the applicant at the time of trial and could not be known to him even with the
exercise of due diligence. Id. at 545; see Ex parte Holloway, 413 S.W.3d 95, 96–97
(Tex. Crim. App. 2013). While a complainant’s recantation may constitute “new”
evidence, it remains within the trial court’s province as the finder of fact to assess
the credibility of such recanting. Ex parte Vasquez, 499 S.W.3d 602, 609–10 (Tex.
App.—Houston [1st Dist.] 2016, pet. ref’d); see Ex parte Gonzalez, 323 S.W.3d 557,
559 n.3 (Tex. App.—Waco 2010, pet. ref’d) (“The recantation of a witness raises a
Herrera claim.”).
Assuming without deciding that Garcia’s post-trial statements constituted new
evidence,4 the trial court had evidence before it to support its finding that Garcia’s
testimony at trial was more credible than his recantation. Although Garcia testified

4
The trial court held that Appellant failed to demonstrate any newly discovered evidence in support
of his actual innocence claim. In holding that complainant’s affidavit was not new evidence, the trial court
found, in relevant part, that “Garcia’s testimony both at trial and in his affidavit executed nearly 10 years
later are substantially similar” and “[Appellant’s] defensive theory at trial was one of false and misleading
testimony by Garcia.” See State v. Guerrero, 400 S.W.3d 576, 583 (Tex. Crim. App. 2013); see also Ex
parte Valdez, No. 11-19-00398-CR, 2020 WL 6498410, at *2 (Tex. App.—Eastland Nov. 5, 2020, no pet.)
(mem. op., not designated for publication) (concluding the appellant’s evidence did “not constitute newly
discovered or newly available evidence that will support a claim of actual innocence” where the appellant
was convicted of possession of an unlawful prescription and in the appellant’s application for writ of habeas
corpus, he attached an affidavit from an individual declaring that the prescription found belonged to her
because this information was known to the appellant at the time of his plea).

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that he signed an affidavit, which stated that his trial testimony was “misleading and
incorrect,” Garcia neither testified at the habeas hearing with any particularity nor
did his affidavit state with any particularity “how his trial testimony was
‘misleading’ or ‘incorrect.’” When Garcia was prompted as to why the trial court
should believe his habeas testimony as opposed to what he testified to at trial, Garcia
summarily stated, “I was mad. Frustrated.” Garcia stated that it was Appellant’s
wife or Appellant’s lawyer who drafted the affidavit, and that he signed the affidavit
only after Appellant’s wife had obtained Garcia’s personal information without his
knowledge and “showed up to [his] front door.” Additionally relevant were Garcia’s
expressed concerns about retaliation from Appellant’s family at both the habeas
hearing and immigration hearing. Such responses, coupled with Garcia’s non-
specific affidavit support the trial court’s conclusion that “the circumstances under
which Garcia’s affidavit was procured cast[] doubt upon the credibility of the
statements contained therein.” See Ex parte Vasquez, 499 S.W.3d at 609 (“The fact
finder is entitled to reconcile conflicts in the testimony and to disbelieve a
recantation.”).
The resolution of Appellant’s application for writ of habeas corpus here
depends heavily upon the trial court’s assessment of credibility, and we defer, as we
must, to the trial court’s credibility determinations because they are supported by the
record. See Ex parte Thompson, 153 S.W.3d 416, 417–18 (Tex. Crim. App. 2005);
Ex parte Vasquez, 499 S.W.3d at 609; see also Ex parte Greer, No. 10-19-00126-
CR, 2019 WL 4200419, at *2 (Tex. App.—Waco Sept. 4, 2019, pet. ref’d) (mem.
op., not designated for publication) (deferring to the trial court’s credibility findings
where the trial court found that a complainant’s recantation was not credible); Ex
parte Harris, No. 05-18-00008-CR, 2018 WL 2749686, at *3 (Tex. App.—Dallas

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May 31, 2018, no pet.) (mem. op., not designated for publication) (concluding the
same where a complainant recanted her statement accusing the appellant of stealing
from her because “[t]he trial court, having had the opportunity to assess the
credibility and demeanor of both the complainant’s and appellant’s testimonies, was
in a better position than this court to evaluate the credibility of appellant’s alleged
new evidence”); Ex parte Irwin, No. 2-09-282-CR, 2009 WL 3720176, at *2 (Tex.
App.—Fort Worth Nov. 5, 2009, pet. denied) (mem. op., not designated for
publication) (concluding the same where the trial court considered a complainant’s
prior testimony and photographic evidence of injuries sustained).
In light of the circumstances under which Garcia executed his non-specific
affidavit, written by either Appellant’s wife or lawyer ten years after the offense, the
trial court did not abuse its discretion in finding that Garcia’s affidavit and
accompanying testimony failed to unquestionably establish Appellant’s innocence.
See Ex parte Navarijo, 433 S.W.3d at 569 (“[T]he complainant’s global denial of
sexual abuse after a more than ten-year delay does not rise to the level of clear and
convincing evidence to show that no reasonable juror would have convicted
applicant in light of that evidence.”); Ex parte Brown, 205 S.W.3d at 547–48
(concluding the same where a complainant’s testimony at the habeas hearing, made
seven years after the event, that she “made up her allegation merely because she was
mad” at the appellant was determined to be “vague, uncertain, and nonspecific”).
The evidence of innocence, as presented, falls short of being clear and convincing.
Accordingly, we cannot conclude that the trial court’s denial of Appellant’s
application for writ of habeas corpus was an abuse of discretion. See Ex parte
Sanchez, 625 S.W.3d at 144. We overrule Appellant’s second issue.

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Having concluded that Appellant failed to show he is actually innocent of the
convicted offense by clear and convincing evidence, we need not address
Appellant’s first issue. See TEX. R. APP. P. 47.1.
Alleged Violation of Due Process Issue Not Preserved
As to Appellant’s third issue, he claims a due process violation for the State’s
alleged use of false testimony. However, in his application for writ of habeas corpus,
Appellant’s sole ground for relief was his actual innocence claim; he made no
complaint that the State had violated his Fourteenth Amendment right to due
process. See Ex parte Cook, 691 S.W.3d 532, 590 (Tex. Crim. App. 2024)
(observing the difference between a due process claim and actual innocence claim
in an application for a writ of habeas corpus).
When an issue is not specifically included in an application for writ of habeas
corpus, the issue may not be raised for the first time on appeal. See TEX. R.
APP. P. 33.1(a)(1); Ex parte Campozano, 610 S.W.3d 572, 581 (Tex. App.—Dallas
2020, pet. ref’d) (“Our review of the trial court’s order denying habeas relief is
limited to issues properly raised and addressed before the trial court.”); Ex parte
Perez, 536 S.W.3d 877, 880 (Tex. App.—Houston [1st Dist.] 2017, no pet.)
(concluding the same); see also Ex parte Garza, No. 04-20-00420-CR, 2021 WL
6127929, at *2 n.4 (Tex. App.—San Antonio Dec. 29, 2021, no pet.) (mem. op., not
designated for publication) (same); Ex parte Najera, No. 08-17-00216-CR, 2019
WL 2120328, at *7 (Tex. App.—El Paso May 15, 2019, no pet.) (not designated for
publication) (same); Ex parte Tutton, No. 10-14-00360-CR, 2015 WL 4384496, at
*3 (Tex. App.—Waco July 9, 2015, pet. ref’d) (mem. op., not designated for
publication) (same); Ex parte Motta, No. 13-13-00667-CR, 2014 WL 6602280, at

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*3 (Tex. App.—Corpus Christi–Edinburg Nov. 20, 2014, no pet.) (mem. op., not
designated for publication) (same).
Because Appellant did not raise a due process claim in his writ application or
during the writ hearing, we may not address it now for the first time on appeal. See
TEX. R. APP. P. 33.1(a)(1); see also Ex parte Villanueva, No. 04-21-00345-CR, 2022
WL 4492101, at *2 (Tex. App.—San Antonio Sept. 28, 2022, no pet.) (mem. op.,
not designated for publication) (concluding the appellant “failed to preserve her due
process spoliation argument because she did not raise it in her application or at the
writ hearing”). We overrule Appellant’s third issue.
This Court’s Ruling
We affirm the order of the trial court.

W. BRUCE WILLIAMS
April 30, 2025 JUSTICE
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Williams, J., and Wright, S.C.J.5

Trotter, J., not participating.

5
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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