Cobb, Travis

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-95,984-01

EX PARTE TRAVIS COBB, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 2018CR11604-W1 IN THE 399TH DISTRICT COURT
BEXAR COUNTY

SCHENCK, P.J., filed a concurring opinion.

OPINION

The Court today grants Applicant habeas relief, and I agree with that decision.

I write separately to express my skepticism over this Court’s reliance on federal

habeas case law in formulating the standard set forth in Ex parte Elizondo, 360

S.W.3d 446 (Tex. Crim. App. 2011). In Elizondo, we cited Herrera v. Collins, 506

U.S. 390 (1993) (bare claims of actual innocence) and Schlup v. Delo, 513 U.S. 298
COBB CONCURRENCE — 2

(1995) (claims of actual innocence with alleged constitutional violations), to

recognize two types of actual innocence claims.1

We held in Elizondo that the proper standard of review for bare claims of

actual innocence like Applicant’s is whether there is “clear and convincing evidence

that no reasonable juror would have convicted him in light of the new evidence.”

947 S.W.2d at 209 (emphasis added). In doing so, we recognized that, in the context

of federal habeas law, 2 a bare claim of actual innocence fails unless “new facts

unquestionably establish” innocence. Id. at 208 (quoting Schlup, 513 U.S. at 315);

Herrera, 506 U.S. at 417. Because the Supreme Court had not defined

“unquestionably established,” but clearly indicated that the standard was higher than

the “more likely than not” standard it applied in Schlup, we held that

“unquestionably establish” must have meant the same thing as “clear and

convincing” and adopted that “clear and convincing” standard as our own. Elizondo,

947 S.W.2d at 209.

Properly characterized, the “extraordinarily high” standard this Court relied

on in formulating Elizondo review is actually the “gateway” to habeas relief in

1 Itmay be unfortunate that we have appended this appellation to the claim, as it may be
misunderstood to equate to a judicial fact finding that would preclude further proceedings. What I
address here is a claim based on cognizable new evidence that so undermines confidence in the
judgment of conviction as to necessitate issuance of the writ for a new trial.
2
Herrera addressed a challenge to a state conviction under 28 U.S.C. § 2254.
COBB CONCURRENCE — 3

federal courts when those courts move to undo one of our judgments. House v. Bell,

547 U.S. 518, 538 (2006). It is not the “gateway” to habeas relief in state courts. In

conflating the two, the Elizondo Court may have created unnecessary tension

between the federal habeas system and our State’s jurisprudence by ignoring the

underlying federalism considerations animating Herrera. As the Supreme Court

itself has recognized, “Federal intrusions into state criminal trials frustrate both the

States’ sovereign power to punish offenders and their good-faith attempts to honor

constitutional rights.” Brecht v. Abrahamson, 507 U.S. 619, 635 (1993) (quoting

Engle v. Isaac, 456 U.S. 107, 128 (1982)).

When a state court, in contrast, makes its own “good-faith attempts to honor

constitutional rights,” the same federalism considerations and the same

“extraordinarily high” “gateway” obviously do not exist. See id.; see also Bell, 547

U.S. at 538. As we have our own State Constitution and our own suspension clause,3

we would do well to establish our own standards for their recognition and

enforcement mindful of our primary role and responsibility for the administration of

criminal justice in our State. I recognize that we have not made a habit of applying

our own Constitution to examine questions of entitlement to habeas relief in our

courts. Given that federal habeas review under 28 U.S.C. § 2254 exists as a back

3
TEX. CONST. art. I, § 12 (“The writ of Habeas Corpus is a writ of right, and shall never be
suspended. The Legislature shall enact laws to render the remedy speedy and effectual.”).
COBB CONCURRENCE — 4

stop to—and generally requires exhaustion of—state remedies precisely because that

primary level of review includes both state and federal constitution remedies, our

review should be independent and comprehensive.

I also recognize that the difference between a “more likely than not” standard

of review and a “clearly and convincing” one seems ephemeral. Nevertheless, if

presented with the conclusion that one of our own judgments is so afflicted, I would

prefer to pause and ask the question of how our own Constitution would direct us to

proceed.

This tension—between federal habeas jurisprudence that recognizes its

intrusion into our State’s sovereign power and our own habeas jurisprudence that

nevertheless relies on the very cases that cut into our sovereign power—highlights

my concerns with our opinion in Elizondo. But the question of whether we should

reexamine Elizondo is not squarely before us today. Still, recognizing the potential

conflict between the two bodies of law, this Court should entertain the opportunity

to reexamine our approach on actual innocence habeas claims in the appropriate

case.

Delivered: March 26, 2025
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