Zapata, Ex Parte Mark Anthony ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,784

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EX PARTE MARK ANTHONY ZAPATA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2001CR3607 IN THE 290^TH JUDICIAL DISTRICT COURT FROM BEXAR COUNTY

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   Per curiam. Hervey, J., filed a dissenting opinion, in which Keller, P.J. , and Keasler, J., joined. Meyers, J. dissented.

O P I N I O N  

Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was charged with sexually assaulting each of his three daughters. Applicant pleaded guilty to one count of aggravated sexual assault of a child and was sentenced to fifteen years' imprisonment. On the day of sentencing Applicant moved to withdraw his plea, which was denied by the trial court Applicant also filed a motion for a new trial, which was heard and denied.

On direct appeal the Fourth Court of Appeals held that under Appellate Rule 25.2(b)(3) it lacked jurisdiction to consider the merits of Applicant's claims. Zapata v. State, No. 04-02-00763-CR (Tex. App. - San Antonio, September 3, 2003, pet. ref'd).

In this writ Applicant contends, inter alia, that his plea was involuntary because at the time he entered it he was not aware that the complainants had recanted their accusations and would not have testified against him in a trial. Applicant learned of the recantations after the entry of the plea but before sentencing. He was unable to produce his daughters to testify at the sentencing hearing in support of his motion to withdraw his plea, because their mother drove up from Corpus Christi the night before the hearing and took the complainant and her sisters away with her.

The trial court held a hearing on Applicant's writ of habeas corpus. At the hearing, Applicant testified that he misunderstood counsel's use of legal terminology at the time of the plea, and believed incorrectly that he could withdraw his plea at any time before sentencing. He admitted to telling the probation officer who conducted the pre-sentence investigation interview that he had committed various offenses against his daughters. However, Applicant testified at the habeas hearing that he fabricated the admissions because he believed that he would be more likely to obtain a more lenient sentence if he admitted guilt.

Two of Applicant's three daughters testified at the habeas hearing, and both testified that Applicant had never touched them inappropriately or had sex with them. They testified that they had accused Applicant of sexually abusing them because they were angry at him for wanting to divorce their mother and that they had been misled during interviews with sexual assault investigators and prosecutors. Applicant's third daughter, who had earlier recanted her accusations against Applicant, had planned to testify for the State at the habeas hearing. However, Applicant filed a motion to exclude her testimony on the basis that she had been in the courtroom throughout the proceedings, in violation of the rule of sequestration. The third daughter did not testify for the State or for Applicant at the habeas hearing.

The trial court has entered findings of fact and conclusions of law finding that the witnesses who testified for Applicant at the habeas hearing were credible and concluding that Applicant should be permitted to withdraw his plea. The trial court's findings are supported by the habeas record. At the time of Applicant's motion to withdraw his plea, he was unable to produce the recantation testimony of his daughters, through no fault of his own. In light of the new evidence presented at the habeas hearing, it appears that Applicant's plea was not knowingly and voluntarily entered. Relief is granted. The judgment in Cause No. 2001CR3607-W1 in the 290th Judicial District Court of Bexar County is set aside, and Applicant is remanded to the custody of the Sheriff of Bexar County to answer the charge against him.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division.

Delivered: October 10, 2007

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