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Actual Innocence,

Two Conflicting Definitions in Texas

Two conflicting definitions exist in our Texas Courts. One Substantive and the other Procedural.

The following exposes the fraud used to destroy a Right secured by Constitutional and Statutory Law. At the same time utilizing a deceptive use of words to oppress the victim and dissuade others from assisting the victim.

The substantive reference is concerned with innocence or guilt. The Procedural reference is concerned only with when a person proves their innocence. The litigators in the Office of the Attorney General were able to establish the second by requesting a 'technical definition'. An appellate court Justice granted their request to a "procedural framework". With this the trial lawyers employed at public expense in the Office of the Attorney General were able to collude with the Justice to circumvent the well established substantive definitions, the Law, established by our United States Supreme Court and our Texas Court of Criminal Appeals to deprive Heimlich of his common law right to restitution. A Right our Constitutions intended to secure for him, and all others who might find themselves to be victims of government malfeasance.

This begins with Sec. 311.011 of the Texas Government Code. It allows the Judicial Division to administer a 'common usage' definition or a 'technical meaning' of words or phrases.



(a) Words and phrases shall be read in context and construed according to the rules of grammar and common usage.

(b) Words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly. Acts 1985, 69th Leg., ch. 479, Sec. 1, eff. Sept. 1, 1985.

When others hear someone from the OAG (office of attorney general), or elsewhere, say “(name of citizen) innocence was not actual” they assume it is a reference to a 'common usage' definition based on substance. This is deceptive and misleading when it is a reference to a 'technical definition' created by an Appellate Court on grounds of a 'procedural framework' that has nothing to do with, and is contrary to, the words as understood in common usage. It is, as well, slanderous to the person whose actual innocence (his exoneration) was established on direct appeal but is then deprived of compensation for his wrongful imprisonment because, pursuant to the 'technical definition' created specifically for a civil case for wrongful imprisonment compensation, he is denied permission to sue the State.

Furthermore; This Judge created particular meaning is contrary to the interpretation of the phrase by both our US Supreme Court and our Texas Court of Criminal Appeals (TX CCA). It is an example of legislation whereby the Judicial Division perverts statutory law to make it something other than what was intended. 

First Definition; A Substantive / Common usage foundation:

A Common Meaning / Lay Person's Definition

The common definition assumed by common people is one of substance. That is, is a person “really” innocent? The common person may speculate that facts remain unknown, or unproven, or were withheld from the jury by court ruling, and that, if discovered or allowed, would prove guilt. This is a question of the substance of innocence. Of course, if all facts relevant to the elements of the crime are known then the people will consider the common definition of actual innocence to apply. That is the lay person's understanding of actual innocence.

U.S. Supreme Court & Texas Court of Criminal Appeals

As all sufficiently competent to secure a license to practice law must know; all cases turn on (1) questions of law and (2) questions of the facts applicable to the law. A criminal case is a lawsuit brought by the State on an Individual the State has accused of violating a Law for which penal sanctions apply. Thus the highest courts have allowed actual innocence claims based on (1) law or (2) facts.

Claim of Actual Innocence based on Law;

legal insufficiency of the evidence / Constitutional Error

If all facts are known but an examination of the law reveals there was no violation of law then the innocence of the accused is actual. The conviction was the result of the failure of the prosecution and/or trial judge to provide due process of law. This is what the US Supreme Crt and Texas Court of Criminal Appeals refer to as Actual Innocence, but the person was convicted because of Constitutional Error. If not for the violations of our Constitution no reasonable jurry could, or would, convict. In the reversal of a conviction on appellate review these grounds are referred to as 'legal insufficiency of the evidence'. All facts are known but the legal evidence (i.e.; the Law) ignored by the trial court, prevented the revelation of actual innocence at, or before, the person was convicted. This is sometimes referred to absolute, or bare, innocence. Guilt, or 'actual guilt', is not possible. NOTE: The word phrase 'actual innocence' is not required for a finding of 'actual innocence' pursuant to this definition of the phrase. What is important is the substance.

The lay person's concept of actual innocence, the 'common meaning', is consistent with this cause for a finding of Actual Innocence. These Courts refuse to allow conviction via means of ex post facto / retroactive Law created by a prosecutor and judge who lead, or allow, the jury to nullify the law. They understand that in a republican form of government in a land that values liberty individuals have sovereign immunity but for waiver through their legislative division of government in clear and unambiguous terms. This is also known as the Rule of Law, the essence of liberty.

The criminal prosecution of Heimlich came to an end with a finding of 'legal insufficiency of the evidence' combined with order of acquittal. It was a finding of bare innocence, of actual innocence, as all relevant facts were known and not subject to question.

Liberty is the Right to have Law protect the individual from the government and from a mob, even if that mob is a jury is being led by government actors in disregard of the Individual's god given rights our Constitutions attempt to secure.

Error revealed by New Evidence / factual insufficiency of the evidence

The other cause for a finding of Actual Innocence created by the US Supreme Crt & TX CCA involves evidence not presented at trial. Referred to as fact evidence. In a reversal of a conviction on appellate review these grounds are referred to as 'factual insufficiency of the evidence'. Because of DNA, and some other advances in forensic science, these cases have been more numerous. They also receive the most publicity because they remain contentious. Absolute, or bare' innocence is not required in these cases for a finding of 'Actual Innocence' pursuant to the US Supreme Court Crt & TX CCA definitions of the word phrase.

Because of the new evidence, usually such as that revealed by DNA or other developments in forensic sciences, there is now a lack of evidence sufficient for the prosecution to meet it's burden of proof beyond a reasonable doubt. A well known example is Michael Morton. Michael did not prove he did not kill his wife (prove a negative). Michael did not prove someone else committed the crime before his exoneration. But he did prove that evidence had been withheld from the jury. And he successfully argued that if that evidence had been presented to the jury the jury would not have found guilt beyond a reasonable doubt. His relief from his conviction came before anyone else was even charged with the murder of his wife.

The vast majority of the convictions that have been reversed on appellate review were because new evidence showed 'actual innocence', but not 'absolute innocence'. By contrast; bare, absolute, innocence, as well as Actual Innocence, is obvious from the facts of the Heimlich case and the law applicable to his case.

How the phrase came into usage

The compound word phrase entered our courts as a result of cases where another review of a conviction was barred by statutory law. A high court in Virginia ruled that actual innocence was not cause to stop an execution! This precedent was subsequently reversed by the US Supreme Court in response to public outcry and State Courts followed. The new precedent provided that a showing of Actual Innocence in a Writ of Habeas Corpus must be allowed to re-open the courts for review of a conviction after the conviction was upheld on direct appeal even if a Legislative body had barred further reviews.

A ruling granting relief on the writ might not use the actual phrase "actual innocence", but if the substance of actual innocence, that is, a finding of constitutional error or new evidence sufficient to reverse the conviction, is found in the pleadings. The same is true on every reversal of a conviction that comes in a direct appeal where no writ of habeas corpus is required to obtain review. Thus it is a definition based upon the substantive meaning of the phrase.

No Difference between a Writ and a Direct Appeal

The trial attorneys employed at public expense in the Office of the Attorney General came up with a clever scheme to argue for a technical definition. In response to the revelation of the definitions created by the US Supreme Court and the Texas Court of Criminal Appeals they siezed upon where in the legal procedure the definition had come into being. That is; by Writ of Habeas Corpus. The lay person does not understand that their is no difference between a Writ of Habeas Corpus and a Direct Appeal. Both are appellate reviews of a conviction. The only difference is when the conviction is reviewed and reversed. A Direct Appeal is a Writ of Habeas Corpus that is secured by a Constitution or Statute that created an appellate court to review convictions. Thus it is title an appeal rather than a writ and it is directed to the appellate court. But in substance there is no difference. Both are reviewed by appellate courts and the standards of the review are identical.

Second Definition: Judge create Technical meaning with a time in process foundation:

To be nice I will not make an accusation of Obstruction of Justice, although it could easily be applied to what has been done. The Office of the Attorney General of Texas (OAG) filed an unlawful appeal to a Final Judgment for damages caused by a disregard for due process of law in the trial court. The issue was the same as previously ruled on, thus barred by law, but Justices tend to give deference to the Office of the Attorney General (OAG) and suspend the law and rules of court for this law firm funded by the public. The OAG utilized a new strategy and this time asked the Appellate Court for a "technical" definition of the phrase 'Actual Innocence' intended by the Legislators their act on Wrongful Imprisonment.

The Texas Third Court of Appeals (3rd COA) unlawfully accepted a 2nd appeal of the same issue and created an entirely new definition of Actual Innocence. A definition determined by Procedure without any regard to Substance. The following are from the opinion in which it was created;

In this jurisprudential context, the legislature's use of the phrase "has been granted relief based on actual innocence" thus connotes both a specific standard of proof and a procedural framework through which such relief is obtained--a writ of habeas corpus.

"ultimately obtained acquittal on grounds of legal insufficiency of the evidence in his direct appeal. We conclude that it does not include such claimants, but instead manifests the legislature's intent to limit chapter 103's waiver solely to claimants who have obtained habeas corpus relief".

we must conclude that the legislature intended to provide a remedy solely to the wrongfully convicted who cannot [sic, did not], for whatever reason, obtain relief through available direct appeals.

The foregoing 'technical' definition has absolutely nothing to do with whether or not the person seeking compensation is guilty or innocent, actual or otherwise. In fact; under this definition the person could be unquestionably innocent in every respect, and yet still be excluded from inclusion in the class of people whose 'Innocence' may be deemed as 'Actual' because the definition is determined solely by when, in the course of the legal proceedings involved (the "procedural framework"), they obtain relief (a reversal) of the conviction.

The Texas Supreme Court, by acquiescence, has accepted a technical definition of Actual Innocence that is contrary to the definition of the United States Supreme Court and the Texas Court of Criminal Appeals in the case of Young and Heimlich.

The 3rd COA in 2008 reversed it's Opinion and Mandate of 2003, in the Heimlich case. In 2008 it decided in the Young case that if Actual Innocence was determined on Direct Appeal, then the person making the claim for compensation for wrongful imprisonment under the Texas Statutory waiver, does not fit the definition intended by the Texas Legislature in 2001 when it wrote the act. A Justice of the 3rd Court then applied the definition he created in the Young case, writing for the majority, to the Heimlich case, in a memorandum opinion. The Texas Supreme Court, by refusing to hear Heimlich's Petition for Review has refused to correct the conflict and contradiction between the 3rd COA in 2003 and the 3rd COA in 2008.

Thus; two OPPOSING definitions exist. When others hear someone from the OAG (office of attorney general) say, in response to a request for compensation for a wrongful imprisonment, that their innocence was not actual they assume it is a reference to a substantive definition when it is referring to a procedural definition that has nothing to do the facts and law of their criminal case. There is no question there was no crime or that they did not commit a crime, but the OAG utilizes the court created definition to say their innocence was not actual! This is slanderous and libel by deception.

A Constitutional Crises – a conflict between two high courts

In Texas we have two high Courts of equal standing. The Court of Criminal Appeals is for cases in the criminal venue where questions of guilt or innocence are determined. The other is the Texas Supreme Court jurisdiction over civil matters alone. As a Civil court it can only pass judgments on who is liable and who is not liable. It is a court that does not have legal authority to define what constitutes guilt or innocence.

The intermediate, or appellate courts, operate in both spheres. But in a civil case the appellate courts do not have jurisdiction to determine guilt or innocence, actual or otherwise. Thus the opinion of the 3rd that created the technical definition that implies guilt is a legal nullity, and void, pursuant to Sections 28 and 29 of our Texas Constitution's Bill of Rights;

Sec. 28, of Article 1: No power of suspending laws in this State shall be exercised except by the legislature.

Note: Executive (prosecutors) and Judicial (Judges) divisions of government cannot (lawfully) 'suspend laws', as they did in the Heimlich case. But, unfortunately, they often do and they get away with it.

Sec. 29, of Article 1: Provisions of the Bill of Rights Excepted from Powers of Government; To Forever Remain Inviolate.

To guard against transgressions of the high powers herein delegated, we declare that everything in this “Bill of Rights” is excepted out of the general powers of government, and shall forever remain inviolate, and all laws contrary thereto, or to the following provisions, shall be void.

It is also void and a legal nullity because our Texas Constitution delineates between criminal and civil jurisdictions of our courts.

Texas Constitution

Art. 5, Sec. 5. JURISDICTION OF COURT OF CRIMINAL APPEALS; TERMS OF COURT; CLERK. (a) The Court of Criminal Appeals shall have final appellate jurisdiction coextensive with the limits of the state, and its determinations shall be final, in all criminal cases of whatever grade, with such exceptions and under such regulations as may be provided in this Constitution or as prescribed by law.

Art. 5, Sec. 3. JURISDICTION OF SUPREME COURT; WRITS; CLERK. (a) The Supreme Court shall exercise the judicial power of the state except as otherwise provided in this Constitution. Its jurisdiction shall be co-extensive with the limits of the State and its determinations shall be final except in criminal law matters. Its appellate jurisdiction shall be final and shall extend to all cases except in criminal law matters and as otherwise provided in this Constitution or by law.

The appellate review that created the 'technical definition' of the phrase 'actual innocence' was a civil case, not a criminal case. It was in the civil venue and, therefore, not within the purview of the Office of the Attorney General or the Appeallate Court to create a definition of a phrase applicable solely in the criminal venue of our Court system.

NOTE: Just because our Texas Constitution says our Rights shall remain 'inviolate' does not mean they are not violated by government actors in the Executive and Judicial Division of government. They often are and the victims remain violated. This will remain common place on our Land of Texas until a sufficient number of legislators stand up and honor their oath of office to preserve, protect, and defend our Texas Constitution.

See Also the Texas Center for Actual Innocence at the UT School of Law.