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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Monday, April 2, 2012

Inconsistent Testimony, Recantations Don't Require New Trial

In Duke v. State, No. 06-10-00209-CR (Tex. App.--Texarkana, Mar. 27, 2012) (no pet. h.) the first time that the child told the school counselor that her stepfather touched her genitals, she said that it had happened during horseplay and wrestling. The counselor said that the child's statement exculpated the stepfather. An investigator who interviewed the counselor said that the counselor had inculpated the stepfather. The next month the child told her father that she had been molested. She later told the investigator that the stepfather had penetrated her anus with his penis, but stated after that that he had only touched her buttocks with his penis through her clothing. After that, she recanted to her mother. Further on in time, there was a trial. The child testified that the stepfather had put his penis in her anus. She also stated that the penis was not hard. The stepfather is convicted of indecency by contact and gets a 60-year sentence. After the trial, the child moved back in with her mother, and recanted in a motion for new trial. Around that time, she told the investigator that she had been telling the truth at the trial. Should a new trial be granted?
A motion for new trial based on a recantation must satisfy the following four-part test for newly discovered evidence:
(1) the newly discovered evidence was unknown or unavailable to the movant at the time of his trial;
(2) the movant's failure to discover or obtain the evidence was not due to a lack of diligence;
(3) the new evidence is admissible and is not merely cumulative, corroborative, collateral, or impeaching; and,
(4) the new evidence is probably true and will probably bring about a different result on another trial.
The decision is within the sound discretion of the trial court.
The trial judge ruled that the new evidence was not probably true, that the child seemed resigned in her testimony at the motion for new trial, and the appeals court would not second-guess the trial judge.

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