FORT WORTH, Texas (AP) – A woman who said a Fort Worth police officer raped her when she was 13 acknowledged on the witness stand Thursday that she lied in part of her testimony against him in 1995, but still insisted the officer was guilty of the attack.
She faced the now-former officer, Brian Franklin, in an unusual state district court hearing ordered by the Texas Court of Criminal Appeals, which in recent years has changed how it reviews allegations that someone did not receive a fair trial.
The appeals court, the state’s highest for criminal cases, recently agreed to review a new appeal filed by Franklin under the same argument it denied more than a decade ago: that a witness potentially lying was enough for a new trial.
On Thursday the woman, whose name is being withheld by The Associated Press because the case involves rape allegations, said she lied when testifying that she never had sex before Franklin raped her in her father’s backyard in March 1994. A few years after Franklin was convicted and sentenced to life in prison, she told authorities her stepfather had been raping her years before the assault by Franklin.
Dick DeGuerin, one of Franklin’s attorneys, asked the woman, “But the fact is you did lie, didn’t you?”
“Yes, I did,” the woman replied.
She testified that she feared her stepfather. She said he stayed in the courtroom during Franklin’s trial and accompanied her during police and doctor appointments beforehand.
“He was there everywhere I went,” she said.
The stepfather received 10 years’ probation after pleading guilty to injury of a child, according to Tarrant County district attorney’s spokeswoman Melody McDonald Lanier.
The accuser, now 33, was brought into the courtroom in a wheelchair Thursday and appeared to struggle with spasms throughout her testimony. Prosecutors said she suffers from an autoimmune disease that has left her with severe muscle spasms and blindness in one eye.
Franklin’s attorneys said the change in her testimony should warrant throwing out the conviction and sentence. The case didn’t have DNA evidence tying Franklin to the rape. Instead, it rested almost entirely on the testimony of the accuser.
“It’s a simple case,” DeGuerin said after the hearing. “A conviction cannot stand if it’s based on perjury, in whole or part. That’s just basic fairness and due process.”
Prosecutors disagreed, arguing that the woman had never wavered on whether Franklin raped her and that it wasn’t clear the change in her testimony would have made a difference. Jack Strickland, one of the prosecutors, said jurors might not have necessarily acquitted Franklin if they knew about a separate case of abuse.
“The truth of the matter is we don’t know with certainty,” he said, adding that it would be a “travesty” for the case to be overturned based on that omission.
Strickland called on State District Judge Wayne Salvant, who oversaw Thursday’s proceeding, to consider potentially holding a hearing to resentence Franklin without setting aside his conviction.
Salvant is not expected to rule for at least one month, though he previously ruled in favor of setting aside Franklin’s conviction during the former officer’s earlier appeal more than a decade ago.
Franklin did not testify Thursday, although he jumped up once early in the hearing and said he wanted to speak. His attorneys and a bailiff quickly told him to sit down.
Franklin’s attorneys say the renewed case reflects a shift in the Court of Criminal Appeals’ willingness in recent years to accept appeals like Franklin’s that lack new DNA evidence or clear proof of innocence. Texas lawmakers, after being confronted by a series of overturned convictions, also have passed several reforms in the last decade, including new requirements for investigators to share evidence with defense attorneys before trial.
The Court of Criminal Appeals signaled in 2009 that it would reconsider how perjury by a witness might affect a criminal case, when it set aside the murder conviction of Clay Chabot after DNA proved a witness lied about his own role the night of the crime. Chabot would plead guilty to murder afterward and was sentenced to the 22 years he had already served in prison.
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