Cook, Kerry Max

In the Court of Criminal
Appeals of Texas
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No. WR-84,565-01
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EX PARTE KERRY MAX COOK,
Applicant

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On Application for Writ of Habeas Corpus
Cause No. 1-77-179-A in the 114th District Court
Smith County
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YEARY, J., filed a dissenting opinion.

I agree with Presiding Judge Keller that Applicant has failed to
demonstrate that he is actually innocent, and that he has also not shown
that he is entitled to relief pursuant to the standard announced by this
Court’s opinion in Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App.
1996). But I also conclude that Applicant is not entitled to a new trial. I
would simply deny relief.
COOK – 2

“Only the use of material false evidence amounts to a due-process
violation.” Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App.
2014). False evidence is “material” only if there is a “reasonable
likelihood” that it affected the judgment of the jury. Ex parte Chaney,
563 S.W.3d 239, 263–64 (Tex. Crim. App. 2018). The applicant also has
the burden to show the materiality of the false evidence by a
preponderance of the evidence. Id.
The Court is convinced that, not only was materially false
evidence used against Applicant to induce his plea in this case, but also
that he has shown himself now to be actually innocent of the
unimaginable crime for which he was convicted by a jury twice and upon
his own plea once. Wow! I hope they are right since their judgment wins
the day in this Court. I agree with both Applicant and the Court that
there is now new evidence showing that some of the evidence relied upon
by the State to induce Applicant’s latest plea of nolo contendere has
turned out to be false. I simply cannot conclude however, like the Court
does, that the false evidence was material. In all humility, I may be
wrong about my assessment of the evidence in this case, but I remain
convinced today that, even being put on notice of the false evidence
pointed to by Applicant, on balance, a rational jury would still have
found Applicant guilty.
I respectfully dissent.

FILED: June 19, 2024
PUBLISH