Harvey, Ex Parte John Michael ( 2004 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-74,955

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EX PARTE JOHN MICHAEL HARVEY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM TARRANT COUNTY

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   Johnson, J., filed a dissenting opinion.



D I S S E N T I N G O P I N I O N  

I have great misgivings about the recantation in this case. The complainant made outcry in 1989 at age three. She testified at appellant's trial in 1992 that appellant had abused her. The testimony of her mother on cross-examination at that trial indicated that the mother's written statement, which exculpated appellant by inculpating unknown others, was written by appellant and copied by the mother in her own handwriting. The mother also admitted to not being able remember significant events, such as an outcry, because she had been using illegal drugs.

Complainant's testimony at the hearing in 2004 was in essence that 1) she didn't remember being molested at age three, and 2) she did not remember what she testified to at age seven in 1992, but whatever she had said, it was not true. It appears that the complainant is recanting by saying that if she does not remember it, it did not happen. Further, having dreams about a large man with a tattoo of an eagle on his buttock does not prove that she was molested by such a person nor disprove that she was molested by appellant, just as the belief by a city child that there is a bear under the bed does not prove that it is, or was ever, there.

I do not believe that the testimony presented at the hearing in 2004 "unquestionably establishes" appellant's innocence. I respectfully dissent.

Johnson, J.

En banc

Filed: December 8, 2004

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