## IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR

- 84,021

- 04

EX PARTE LYDELL GRANT

, A pplicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 1288802

- C IN THE

351ST DISTRICT COURT OF HARRIS COUNTY

R ICHARDSON

, J ., filed a concurring opinion , in which K ELLER

, H ERVEY

, and

W ALKER

, J.J. joined.

CONCURRING OPINION

I join this Court’s order granting actual innocence relief to Applicant and write

separately to clarify the reasons for th e delay in issuing this order.

When an applicant files a habeas application and the convicting court makes

findings of fact or approves the findings of the person designated to make them, the clerk

of the convicting court (also referred to as the d istrict c lerk) has the responsibility to

transmit the complete writ record to this Court. Both Article 11.07 § 3(d) of the Texas Code

of Criminal Procedure and Texas Rule of Appellate Procedure 73 .4(b)(4) make this clear.

Moreover, t he Texas Constitution, Chapter 11 of the Texas Code of Criminal Procedure,

### 2

and Texas C ourt of Criminal Appeals precedent confer authority on this Court to grant

habeas corpus relief, including actual innocence relief in final felony convictions. When

the trial court makes findings and recommendations, the record needs to support them. If

the submitted record does not support the trial court’s finding s and recommendations

, it is

difficult

– if not impossible

– for this Court to grant the relief sou ght. To reiterate, it is the

responsibility of the district clerk to forward t he complete record; it is not this Court’s

responsibility to a s sure that we have the entire recor d presented to the trial court. In deed,

in most cases, this Court has no independent means of knowing whether any exhibits,

documents, or other parts of the record (such as the Houston Police Department report that

we discuss below) may be missing. T hat burden falls upon either the applicant through his

attorney or the trial court because they are in the best position to know what c onstitutes the

complete record. The parties must take measures to be sure this Court has the complete

record in order to make its decision

. In fact, lawye rs have access to this Court’s TAMES

system through the attorney portal and can confirm whether we have received exhibits,

such as the confession in this case. And s urely, in cases in which the State recommends

actual innocence, it behooves the appropriate agency to provide this Court with the right

evidence

– namely the Houston Police Department report we discuss below.

When it is obvious from the record presented to this Court that something is missing,

we may request that the record be supplemented, or remand it for further proceedings. So

it is here. In this case, this Court made three separate requests for items that shoul d have

been included in the initial record

. Certainly

, the most critical piece of evidence was the

alleged confession by another person who claimed to have committed this crime and was

### 3

subsequently indicted by the State

. That confession and the Houston Police Department

report were inexplicably left out of the record forwarded to this Court

. It is not clear if the

District C lerk ever received the confession, but the failure of Appli cant’s attorney to

confirm this Court’s receipt of the co nfession at the time of the initial case submission

ultimately led to delay s in this case

. These delays happened to overlap with the beginning

of the COVID

- 19 crisis and accompanying statewide quarantine

, slowing the process down

even more

. In addition, it became clear only recently that the Houston Police Department

might have known in September 2019 that someone else was involved in this case; knew

in December 2019 that someone else admitted to the conduct at issue in this case; and knew

in February 2020 after the Houston Police Department’s report was complete that

Applicant did not commit the crime for which he was convicted

. For reasons that are

unclear, neither the District C lerk, nor the State, nor the Applicant’s att orney initially

provided this report to this Court

. We did not receive it until M arch 2021.

A brief review of the facts of this case and the law on actual innocence is helpful

here. Applicant was convicted of murder based on the testimony of six eyewitnesses who

positively identified him both during the police investigation of the incident and at trial.

Alleging actual innocence based on post

- conviction DNA testing and the confession of

another person, Jermaric o Carter, Applicant filed a habeas application in the county of

conviction. The Harris County D istrict C lerk then forwarded the application, which this

Court received on January 2, 2020.

To be declared actually innocent, “an applicant must prove by clear and convincing

evidence that no reasonable juror would have convicted him based on the newly discovered

### 4

evidence.” Ex Parte Elizondo

, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996). Here

, the

basis of Applicant’s claim hinged on eyewitness testimony, post

- conviction DNA testing

,

and the confession of Jermaric o Carter. After its initial review of the record, this Court

determined that it had not receive d a copy of Jermaric o Carter’s confession. To satisfy the

hefty burden set out in Elizondo

, Applicant

– through his attorney

– needed to provide this

confession

. Accordingly, on April 1, 2020, this Court remanded the case to the trial court

to obtain that critical piece of evidence. This process may have looked different if this

Court had received the Houston Police Department report at the time the case was

originally submitted or any time before March 2021

. Based on the report we now know

exists, this was an eyewitness case. Applicant ha d no motive, no intent, and no connection

to the victim in this case.

At this time, Texas courts began experiencing delays based on COVID

- 19

restrictions. One month after remand

, o n May 1, 2020, this Court rec eived a video revealing

Jermaric o Carter’s admi ssion of suspicious contact with the decedent on the night in

question. But the parties did not mention the Houston Police Department report that was

not forwarded to us until March 2021. That same week, the Court was attacked by

ransomware and was unable to access all documents for approximately three weeks. Once

past that hurdle, th is Court remanded the application fo r a second time on July 1, 2020,

directing the D istrict C lerk t o forward photographs of Jermaric o Carter taken shortly before

or after the year of the offense and to order the eyewitnesses to respond in affidavits to

Applicant’s actual innocence claim in light of the fact he was identified by six individuals

during the trial. This Court also directed the trial court to make further findin gs of fact as

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the original findings failed to address why this Court should discount the testimony of the

six eyewitnesses from the trial

. Although this Court requested affidavits from all available

witnesses, the State contacted five witnesses and ultimately provided this Court with an

unsworn statement from a single witness who recanted his testimony

. In addition, this

Court issued an order on July 10, 2020 r equesting the District C lerk to supplement the

record to include missing pages. On October 9, 2020, the trial court requested a 90

- day

extension to provide the information this Court requested, which this Court granted on

October 26, 202 0. It was not until March 3, 2021 that this Court received a supplemental

record from the Harris County District C lerk that included additional information from

one eyewitness

, expert testim ony regarding the eyewitnesses in this Court’s possession,

and the newly discovered Houston Police Department report

. Only then, after having

received the DNA evidence in January 2020, the inculpatory statements of Jermarico Carter

in May 2020

, and the supplemental information from Harris County in Mar ch 2021, did

this Court have everything needed to review the fully developed record and bring it to

conference pur suant to internal timelines.

This Court recognize s the importance of actual innocence claims and the careful

work that must take place at each stage of the process. Indeed, it is the duty of this Court

to review the entire record in each case to determine whether claims are valid. It is not that

this Court is reluctant to grant actual innocence; it’s merely that we are unable to do so

without a complete record

. Here, this Court reviewed the record and req uested additional

evidence that was needed before granting relief on an actual innocence claim. W hile this

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case may have taken longer than expected or than Applicant hoped it would, delays in this

case could have been prevented if critical evidence had been provided at the outset.

The District Attorney and trial court recommend that this Court find Applicant

–

who insisted for years that he didn’t commit this crime

– actually innocent. Based on the

complete record that is now in front of us , Applicant has shown that another person

,

Jermarico Carter, admitted to committing this crime; Carter’s DNA was found on the

victim; Carter has no w been indicted for that murder; and the only witness from whom the

State has shared a statement ha s acknowledged he could have been mistaken in his

ide ntification of Applicant

. Applying our standards on innocence, we find that no

r easonable juror would have convicted Applicant on this newly discovered evidence.

W ith these thoughts , I concur in the Court’s order granting actual innocence relief

to Applicant.

FILED: MAY 19, 2021

PUBLISH