NO. 1995-CR-1255A-W1 and EX PARTE IN THE DISTRICT COURT 175TH JUDICIAL DISTRICT KRISTIE MAYHUGH BEXAR COUNTY, TEXAS FINDINGS OF FACT AND CONCLUSIONS OF LAW ON APPLICATION FOR WRIT OF HABEAS CORPUS On this day came on for consideration Applicant?s application for writ of habeas corpus in the above-entitled matter. The Court makes the following ?ndings of fact and conclusions of law. PREFATORY STATEMENT Applicant is one of four defendants, all women, who were convicted under separate indictments of aggravated sexual assault of a child and indecency with a child. They have ?led identical applications for relief, setting out bases for granting a new trial based on newly discovered evidence and alleging factual innocence. A rather unusual procedure was followed in this case, in that the application was initially referred to the Hon. Mary Roman, current judge of the 175th District Court of Bexar County, who entertained the Third Ground of Relief, and made ?ndings and conclusions related to that ground and then referred the balance of each of the applications to the undersigned for determination, presumably because the undersigned was the trial judge who presided over the joint trial of three of the Applicants. Judge Roman has made ?ndings and conclusions concerning Ground Three which are attached hereto as an exhibit and which ?ndings and conclusions are adopted by the undersigned, who concurs therein. Moreover, many of Judge Roman?s ?ndings of fact are as relevant to determination of the legal issues remaining as they were to Ground Three, and will not be restated. Further, though Judge Roman?s determinations were directed to Ground Three, they are equally applicable to Grounds Two and Four, which also relate to the receipt of scienti?c evidence which has been determined to have been inaccurate and misleading, based on further research in the signi?cance of physical ?ndings in the sexual assault examination of pubescent and prepubescent girls. Only further ?ndings of fact and conclusions of law not contained in Judge Roman?s ?ndings and conclusion will be iterated herein. After hearing Ground Three and concluding that new trials should be granted to each of the Applicants, since the State concurred in an agreed set of ?ndings of facts and conclusions of law as to that ground, Judge Roman released three of the Applicants on bond, and they remain in that status. They are Kristie Mayhugh, Cassandra Rivera and Elizabeth Ramirez. Anna Vasquez has been granted parole. It is suggested, and may well be the case, that the three not on parole were denied parole because of a persistent refusal of each to admit the truth of the allegations of which they had been found guilty. However, Anna Vasquez likewise declined to admit guilt and nevertheless received parole. Mayhugh, Rivera and Vasquez were jointly tried before the undersigned as the then presiding judge of the 187th District Court in February of 1998. Ramirez was separately tried before the late Hon. Mike Machado, then judge of the 227th District Court. The defendants all testi?ed in their own trials and each denied the accusations. The balance of this document will address the remaining issues not resolved by Judge Roman. ADDITIONAL FINDINGS OF FACT l. The complainants in the cases are Stephanie Limon, who was age 7 at the time of the alleged occurrence of these alleged offenses, and Vanessa Limon, who was age 9 at the time. The two are sisters of each other and nieces of Applicant Elizabeth Ramirez, and the events were alleged to have occurred at Ms. Ramirez? place of residence. 2. Elizabeth Ramirez, after being emancipated at age 15, had previously lived for a time with the girls and their parents, Javier and Rosemary Limon. At the time of trial, Javier and Rosemary were still married, and the girls lived with them. 3. During the time that Elizabeth Ramirez lived with the Limon family, a very bad relationship developed between Elizabeth Ramirez and Javier Limon. Elizabeth Ramirez testi?ed at the writ hearing that Javier made sexual advances toward her that she rejected, and when she became pregnant by another man Javier wanted to serve as father ?gure for the child, which she also rejected. Elizabeth Ramirez did not tell Rosemary Limon about Javier?s advances. 4. Since the trial, Javier and Rosemary have divorced. Since the divorce, Javier has made false allegations that a Mr. Aguirre in Colorado, as well as a 10 year old boy in that state, had sexually assaulted these two complainants. Their mother lost contact with these complainants because Javier was ?dif?cult with the girls?, who told their mother they wanted nothing to do with him. This is what occasioned the girls being in Colorado with their mother, but he went there, pulled a gun on their mother (who took it away from him), and brought the girls back to San Antonio via Greyhound bus. 5. Stephanie Limon has married, and is now Stephanie Martinez. She has recanted her testimony regarding the Applicants, and says no such events ever occurred to her, nor to Vanessa. Vanessa, however, has told Stephanie (according to unobjected-to, and thus probative, hearsay from Stephanie at the hearing in this matter) that it certainly did happen to her, and stands by her trial testimony. Vanessa did not testify herein. 6. Stephanie asserts that Javier was abusive to all the children, and that it was Javier who instigated these complaints. All of the Applicants have expressed that their sexual orientation is toward members of the same sex, and when Javier saw the complainants and a female cousin kissing each other he assumed that they had done that due to the in?uence of ?Aunt Liz? (Elizabeth Ramirez) and her friends (the other Applicants). Javier and his mother, Sera?na talked to the complainants, suggesting that the girls had seen improprieties at Aunt Liz?s house, and that Aunt Liz and her friends had behaved inappropriately with the girls. 7. Stephanie considered coming forward with her recantation when she was 19, after she informed a counselor that her testimony had been untruthful, but Javier told her she?d be prosecuted for lying and go to prison, so she did not. 8. Stephanie, by her own testimony, attempted suicide at age 14, spent 3 weeks in the hospital, and never returned to live with Javier; instead, she was sent to a group home. She did not learn to read until 10?h grade. 9. Before Stephanie did come forward with her recantation, Javier told her he would ?hit her where it hurts? if she did so. When she did so, Javier complained against her to Child Protective Services, regarding her parenting of her own three children. 10. Ramirez, Rivera and Mayhugh were clinically assessed evaluated) by the Executive Director of the Counseling Institute of Texas, Maria Molett, who reviews sexual offenders for the State of Texas to determine whether they require civil commitment, and each was determined not to meet the pro?le of a sexual offender. Anna Vasquez was not seen by Maria Molett, as she had been paroled, but a evaluation of her by others employed in a similar capacity was reviewed by her, and that evaluation suggests that she, too, does not meet the criteria. 11. There is no hard scienti?c evidence (such as DNA evidence or the like) which scienti?cally establishes the guilt or the innocence of any of the Applicants. 12. Since Vanessa Limon has not recanted her testimony; presumably that testimony would be available to the State in the event of a retrial. At any new trial, a new jury would be required to balance the con?icting evidence in order to determine whether the allegations, or any of them, had been proved beyond a reasonable doubt. There are only two witnesses, and one of them continues to assert the truth of her trial testimony. The credibility of these two witnesses is an issue for the jury to decide, and no scienti?c evidence conclusively settles the matter. 13. Therefore, though it appears that the State might have great dif?culty in sustaining the allegations of the indictments in the event of a retrial, it cannot be said that the Applicants have established by clear and convincing evidence that no reasonable juror could convict Applicants in light of the new evidence. CONLUSION OF LAW Though, in accordance with the ?ndings of Judge Roman, all Applicants should be afforded a new trial, their assertion of proof of actual innocence falls short of the mark. Though the newly discovered evidence severely ?muddies the water?, see Ex Parre Harleston, 431 67 (Tex. Crim. App. 2014), the evidence does not unquestionably establish innocence as required by, among other cases, Ex Parte Elizondo, 947 202 (Tex. Crim. App. 1996), Ex Parte Reed, 271 698 (Tex. Crim. App. 2008), and Ex Parte Navarijo, Tex. Crim. App. 2016). Therefore, Applicants should have a new trial, but their claim of having suf?ciently established their actual innocence should be denied. The District Clerk of Bexar County, Texas, is hereby ordered to prepare a copy of this document, together with any attachments and forward the same to the following persons by mail or the most practical means: a. The Court of Criminal Appeals Austin, Texas 78711 b. Nicholas ?Nico? LaHood Criminal District Attorney Paul Elizondo Tower Bexar County, Texas 78205 c: Michael Logan Ware Attorney for Applicant 1407 Texas St., Ste. 102 Fort Worth, Texas 76102 SIGNED, ORDERED and DECREED on Pat Priest, Senior District Judge Sitting by Assignment.