## IN THE COURT OF CRIMINA L A PPEA LS OF TEXA S
NO. WR-84,565-01
EX PARTE KERRY MAX COOK , Applicant
ON APPLICATION FOR WRIT OF HABEAS CORPUS CAUSE NO. 1-77-179-A IN THE 114TH JUDICIAL DISTRICT COURT

FROM SMITH COUNTY
K E L L E R 

### , P.J., filed a concurring opinion.

CONCURRING OP INION The habeas co u r t has recommended that Applicant be g r anted a new trial, and that recommendation is supported by the record. I would follow the habeas court’s recommendation and
g rant Applicant a new trial. B ut I disag ree with the Court’s c o n c l u s i o n that Applicant h as shown himself to be actually innocent under our E lizondo 1 jurisprudence. 2 Showing actual innocence is not

1 Ex parte Elizondo , 947 S.W .2d 202 (Tex

. Crim. A pp. 1 99 6 ) , established the actualinnocence g round f

o r relief as currently recog niz ed in Tex as. Althoug h I have sug g e sted that leg al developments mig ht call for altering the standard for what we call actual innocence, see E x parte Chaney , 5 6 3 S.W .3d 2 39, 278-81 (Tex

. Crim. App. 2 0 1 8 ) ( Keller, P.J ., concurring ), this c oncurrence relies on the standard as it currently ex ists.

2 Althoug h “actual innocence” is considered a claim for g reater r elief because of the impact a d eclaration of actual innocence h as on an applicant’s r e putation, see Ex parte Reyes , 474 S.W .3dCOOK CONCURRENCE — 2 merely an onerous b urden; it is a “Herculean” task. 3 T h e habeas applicant must show “ by clear and convincing evidence that no reasonable juror would have co n v icted him in lig ht of the new evide n ce.” 4 I t is not enoug h to show “a reasonable likelihood” o r a “reasonable p robability ” of a different outcome or even a preponderance of the evidence that the defendant w ould not have been convicted. Those standards apply to other sorts of claim s . 5 Bu t a c tual innocence requires much

more: a finding that no reasonable juror would find Applicant g uilty

. Applicant has failed to satisfy this standard because four items of evidence, at least when they are combined , w o u ld allow a reasonable juror to find h im g uilty

. The habeas court relied on some of the same evidence when it found that Applicant has not established that he is actually innocent.
F irst, Reserve Deputy B ob W ickham testified that Applicant admitted to killing L inda J o. Deputy W ickham said Applicant told him, “I killed her and I don’t g ive a sh-t what they do to me.”
W ickham has never recanted this testimony

. Second, Paula Rudolph identified Applicant as the man she saw in the apartment the nig ht L inda J o was killed, a nd she has n ever r ecanted her identification. Third, Applicant’s fing erprints were found on the sliding g lass door to L inda’s apartment, and they

677, 6 81 (Tex

. Crim. App. 2 015), and because such a d eclaration c a n also g ive rise to civil compensation, see Ex parte Fournier , 4 7 3 S

. W

. 3 d 789, 797 ( Tex

. Crim. App. 2015) (Alcala, J ., concurring ), the only judicial remedy for actual innocence is the g ranting of a new trial. Reyes , 474 S.W

. 3d at 682 n.19. Consequently , althoug h I d isag ree with g ranting relief on the basis of actual innocence, my

opinion is a concurring

opinion because I

ag ree with g ranting a new trial.

3 Ex parte Philip , 672 S.W .3d 138, 139 (Tex

. Crim. App. 2023).

4 Id. at 140.

5 See Ex parte W

einstein , 421 S.W

. 3d 6 5 6 , 6 6 5 (T ex . Crim. App. 2014) (“reasonable likelihood” standard for false-evidence claims); Turner v. United States , 582 U.S. 313, 324 (2017) (“reasonable probability ” standard f or suppression-of-ex culpatory -evidence c laims under Brady v. Maryland , 373 U.S. 83 (1963)); T E X

. C O D E C R I M

. P R O C . art. 11.073(b)(2) (“preponderance of the evidence” standard for new-science claims).COOK CONCURRENCE — 3

w er e left in such a way as to indicate that Appellant had been c losing the door from ins i d e t h e apartment. A lthoug h o t her aspects of the fing erprint evidence h ave been c halleng ed, there is no dispute about the f

act that the prints are Applicant’s and they indicate that he w as i nside the apartment. F ourth, Applicant told various people that he did not k now the victim. 6 I f these denials

were tr u e, t h e y c o n flicted w ith any ex culpatory ex planation for being inside the apartment, and if they were false they sug g ested Appellant’s own consciousness of g uilt. 7 I think a ll of this evidence tog ether is at least minimally sufficient for a reasonable juror to find Applicant g uilty

. Consequently , I concur only in the Court’s judg ment g ranting a new trial.
F iled: J u ne 19, 2024 Publish

6 H e said that to J ames T a y lor, the owner of the apartment where A pplicant was stay ing , and to David Hanners, David B arron, and Nita W ilson, who were all reporters.

7 See United States v. W

allace , 51 F .4th 177, 1 82 (6th Cir. 2022) (false denials can sug g est consciousness of g

uilt); United States v. Davis , 909 F .3d 9, 19 ( 1st Cir. 2 018) (“I t is a well-settled principle that false ex c u lpatory statements are evidence—often strong e v i d e n c e

— o f g u i l t

. ” ) ( i n ternal quotation marks omitted). Some o f Applicant’s denials of knowing t h e v i c t im were also coupled with a claim that h e either knew nothing about the apartment (to Tay lor) or touched the sliding g lass door but never entered the apartment (to H anners and W ilson) (because, by h is account to Hanners, he w as “peeping ” in the apartment). Aside from being inconsistent with each other, these denials also sug g est consciousness of g uilt a nd conflict with any e x c ulpatory ex planation for bei n g in the apartment.