Jackie Russell KEETER, Appellant, v. The STATE of Texas, 74 S.W.3d 31

OPINION KELLER, P.J., delivered the opinion of the Court in which WOMACK, KEASLER, HERVEY, and COCHRAN, JJ., joined. We granted the State’s petition to determine whether the Court of Appeals erred in failing to give proper deference to the trial court’s ruling. We will reverse. A. BACKGROUND 1. Trial In May 1998, appellant lived with Eva and her eight-year-old daughter, J.K. On May 21st, the girl’s father (Travis) and his fiancee (Rhonda) arrived unannounced and asked that the child be permitted to come to their home for a summer visit.

Eva was not home at the time, but appellant allowed Travis and Rhonda to take J.K. out to eat. At the restaurant, J.K. told Rhonda that appellant had been molesting her and had molested her the day before. As a result of this outcry, Children’s Protective Services (CPS) and the sheriff’s department were called, and ultimately, appellant was indicted for indecency with a child. At trial, J.K. testified that appellant had been molesting her a long time, “almost every day,” although she did not remember when it started.

She said, among other things, that appellant “put his private into my private,” but she also said that she never saw his private parts. J.K. further testified that these incidents usually occurred during the afternoon, that she screamed during the incidents because they were painful, that appellant warned her not to tell Eva and J.K obeyed because she was afraid of him, and that the last incident occurred in the morning the day before Travis and Rhonda arrived. Rhonda testified that she did not know J.K until that visit. Rhonda described the outcry statement at the restaurant.

Sheriff’s Investigator Buster testified that he interviewed Rhonda and J.K. on May 21st, but he did not describe the contents of the interview. During cross-examination he admitted that J.K. did not recognize male genitalia. The defense called the child’s mother (Eva), her babysitter (Vennie), and appellant’s father (Jack). Eva testified that May 20th was the last day of school, that J.K. had a half-day of school in the morning, and that she took J.K. to a party at a playmate’s house in the afternoon. She further testified that appellant was home that day, sick in bed.

Eva described her house as having two bedrooms, one occupied by Eva and appellant, and the other occupied by appellant’s father. Vennie and four children slept in the living room. Eva also testified that appellant worked from 6:00 a.m. to sometimes 6:00 to 8:00 p.m. and had been working those hours for about a year. Finally, Eva testified that J.K. and appellant got along well, that J.K. was not afraid of appellant, that Eva and J.K. got along well, and that J.K. never mentioned any problems concerning appellant. Vennie confirmed that J.K. was in school the morning of the 20th and that appellant was home sick.

She testified that appellant usually worked until 7:00 or 8:00 p.m. and that he never kept the children, even on weekends. She also testified that J.K. had a good relationship with appellant and was not afraid of him. Finally, Vennie testified that J.K. would have told her about any problems with appellant. Jack testified that J.K. went to school the morning of the 20th and then went to a party at a friend’s. He confirmed that appellant was home, sick. He stated that J.K. confided in him about her problems and that she was not afraid of appellant.

Finally, he testified that appellant worked from 6:00 a.m. to 6:00 p.m., five to six days per week. A jury convicted appellant and sentenced him to life imprisonment. 2. Motion for New Trial Shortly after trial, the child recanted. A motion for new trial was filed and the trial court conducted a hearing about the recantation. At the hearing, Eva testified that Travis brought J.K back to her because “he was tired of her lying.” When Eva came home from work the day J.K. arrived, J.K. asked to talk to her. J.K told Eva, “I lied....

I wanted to go stay with daddy and you wouldn’t let me.” On cross-examination, Eva denied telling J.K. that Eva could not make it financially without appellant. On direct examination, Travis testified that he had told the prosecutor three or four months before trial, in a cell phone call, that he did not believe J.K. On cross-examination, however, he testified that he had told the prosecutor earlier that he did believe J.K. Through subsequent questioning by the prosecutor, Travis admitted that he had told the prosecutor in January, a month before trial, that he believed J.K.’s story.

Travis then maintained that the cell phone call must have occurred later than he thought. Travis also testified that J.K. accused Jack during trial of making some threatening comments to J.K., and he testified that Jack harassed him — trying to get Travis to pressure J.K. into changing her story. And he testified that J.K. was not given any notice that he was coming to visit her. On redirect, Travis testified that, earlier in 1998, he had written a letter to Eva asking her to allow him to take J.K. for the summer.

Rhonda testified that she never believed J.K’s accusations: she “kept changing her story one too many times.... She will say he did it, then if we asked — -talked about it, she’d.say he didn’t do it or I never said that. She just wasn’t consistent with her story.” Rhonda admitted that she had a poor relationship with J.K.: “I was not going to tolerate her lying, being dishonest, being disrespectful to other people....

I told [Travis] he either gets her under control to where she minds and listens, not throw fits, and hits me, be mean to me or she can go back home to her mother.” When asked about her experience with J.K., Rhonda indicated that J.K. “lies a lot.” J.K. testified that she made up the accusations because she wanted to live with her father. She said that her mother told her she could not go to her father’s for the summer, and she said that the idea for her story came from things her eleven-year-old best friend had told her.

J.K. denied telling Investigator Buster that she changed her story because Eva said she could not make a living without appellant. J.K. claimed she told Buster “that my mom said that she needed help and I had to help her out,” with, for example, washing dishes or cleaning her room. J.K also denied telling Buster that her three-year-old stepsister suggested the plan about accusing appellant of something.

J.K. claimed her stepsister told her that she “could go with [Travis] if something happened.” J.K. did admit that Jack had threatened at trial to take her father away and was mean to her until after she changed her story. Investigator Buster and CPS worker Johnson testified that they jointly conducted an interview with J.K. prior to the hearing on the motion for new trial. According to both of them, J.K. said: (1) that she changed her story because Eva was having a hard time making a living without appellant and she missed him, and (2) her three-year-old stepsister suggested to her the plan to accuse appellant.

In a letter order, the trial court denied the motion for new trial and indicated that he did not believe the recantation testimony: I don’t find the new testimony that recants the trial testimony to be credible. To do so would require me to believe that this young child made up her testimony because her (younger!!!) sister told her she would have to make something up about the defendant so she could get to go and spend the summer with her dad, when she did not previously know her dad was coming and when she had not seen him in two years. 3.

Court of Appeals Opinion Relying on past precedent, the Court of Appeals set forth a four part test for granting a new trial based upon newly-discovered evidence: (1) the newly-discovered evidence was unknown to the movant at the time of trial; (2) the movant’s failure to discover the evidence was not due to his want of diligence; (3) the evidence is admissible and not merely cumulative, corroborative, collateral, or impeaching; and (4) the evidence is probably true and would probably bring about a different result in another trial.

According to the Court of Appeals, a recantation is considered to be “probably true” unless “the trial court finds the recantation to not be credible based on the trial evidence and the evidence at a hearing on the motion [for new trial].” After analyzing several cases, the Court of Appeals concluded that the trial court abused its discretion in finding that the recantation was not credible. The court first found that the trial court had misrepresented the facts.

Although the trial court had characterized the father’s visit as “unexpected,” the Court of Appeals observed that Travis had previously written Eva about having J.K. visit, that J.K. discussed the matter with Eva, and that Eva said “no.” The Court of Appeals also disbelieved the evidence that J.K. attributed the idea of accusing appellant to her three-year-old stepsister: As for whose idea it was to accuse Keeter of something, J.K. testified she got ideas from listening to her eleven-year-old friend, E., who had witnessed firsthand the physical abuse of her mother.

Investigator Buster and the CPS worker attempted to contradict that, and claimed J.K. told them during an interview at her school that J.K.’s three-year-old stepsister came up with the suggestion to accuse Keeter of something. However, Buster admitted J.K. said something about an older girl telling J.K. “what grown people do or something to that effect.” J.K. also denied she got the idea from her stepsister.

All her stepsister said was she “could go with [Travis] if something happened.” The Court of Appeals also refused to consider the testimony from Investigator Buster and the CPS worker that J.K. recanted because her mother told her she could not make it without appellant. In a footnote, the court gave two reasons for refusing to consider this evidence: (1) the trial judge did not specifically refer to this evidence in his reasons for not believing J.K., and

(2) J.K. specifically denied making this statement. 4. The State’s Argument The State contends that the Court of Appeals erred in second-guessing the trial court’s evaluation of the testimony. Relying upon State v. Ross and Guzman v. State, the State argues that the trial court is the sole judge of the credibility of the witnesses and could disbelieve any or all of the testimony. B. ANALYSIS 1. The Four-Part Test Motions for new trial based upon newly discovered evidence are controlled by

Article 40.001, which provides: “A new trial shall be granted an accused where material evidence favorable to the accused has been discovered since trial.” As in all other cases, we interpret this statute in accordance with the plain meaning of its language unless the language is ambiguous or the plain meaning would lead to absurd results that the Legislature could not possibly have contemplated. If the language is ambiguous, or the plain meaning leads to absurd results, then we may look to extratextual factors for guidance in determining the statute’s meaning.

The statute is ambiguous in that the standard of “materiality” varies according to context; so, an examination of extra-textual factors is appropriate. Before its repeal by the Texas Rules of Appellate Procedure,

Article 40.03 set out the grounds for a new trial in criminal cases.

One of those grounds was “[w]here new evidence material to the defendant has been discovered since trial.” We consistently interpreted that provision as requiring the satisfaction of a four-part test: (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.

We characterized the requirement that the evidence be “probably true” as an aspect of the statute’s requirement that the new evidence be material. Pursuant to this Court’s rulemak-ing authority, the

Article 40.03 provision was repealed and replaced by a rule of appellate procedure providing for a new trial “[w]here new evidence favorable to the accused has been discovered since trial.” Pronouncing that the appellate rule contained language “virtually identical” to that found in the statute, we held that the same four-part test applied. With the passage of

Article 40.001, the Legislature clarified our rule by explicitly stating a materiality requirement. The only difference between the new statute and our former rule appears to be that the statute expressly requires the discovered evidence to be “material” while the word “material” was omitted from the rule. Nevertheless, because we construed the rule to incorporate the old statute’s materiality requirement, no substantive change in the law has been effected. Thus, we interpret the new statute in conformity with our prior case-law and continue to adhere to the four-part test. 2.

The Trial Court’s Discretion The trial court has discretion to decide whether to grant a new trial based upon newly-discovered evidence, and its ruling will not be reversed absent an abuse of discretion. The trial court’s discretion extends to situations in which the newly-discovered evidence is the retraction of a witness’s testimony. Likewise, the trial judge determines the credibility of the witnesses and whether the new evidence is probably true. The State and the Court of Appeals appear to be at odds over the extent of a trial court’s discretion to believe or disbelieve a newly discovered recantation.

Relying on Ross and Guzman, the State contends that the trial court has nearly absolute discretion, based upon the trial court’s evaluation of credibility and demeanor, to disbelieve the recanted testimony. The Court of Appeals, on the other hand, appears to be implying that a special rule applies to a recantation of incriminating trial testimony, and that the trial court must have some basis in the record for disbelieving a recantation. The caselaw is unclear in this regard, but it can be construed as supporting the Court of Appeals’s idea that some basis in the record must exist to disbelieve a recantation.

In Williams v. State, we said: “The general rule is that where a witness has testified to material inculpatory facts against an accused and after verdict, and before motion for new trial has been acted upon, such witness makes affidavit that he testified falsely, a new trial should be granted.” We held that this “general rule” was not without exceptions, depending on the testimony at trial and in the hearing on the motion for new trial.

In explaining the “probably true” requirement, we have said, “All this really means is that the whole record presents no good cause to doubt the credibility of the witness whose testimony constitutes the new evidence, ‘either by reason of the facts proven at the trial or by the controverting affidavits on the motion, or otherwise.’ ” In a number of cases, we have evaluated evidence controverting or undermining a recantation in arriving at a holding that the trial court was within its discretion in disbelieving the recantation.

On the other hand, Ross established that, under the Guzman standard applicable in a motion to suppress setting, the trial court may disbelieve all of a witness’s testimony even if that testimony was not controverted. And we have applied to the motion for new trial setting our pronouncements in Guzman regarding deference to a trial court’s determination of witness credibility.

However, Ross and Guzman have thus far been applied only in situations in which the trial judge was the factfinder in the first instance: motions to suppress, a potential witness’s recantation of out-of-court statements after a defendant’s guilty plea, and a question of jury misconduct. In the present case, appellant was tried by a jury on the issue of guilt; the new evidence relates to that issue, on which the trial court was not initially the factfinder-although the trial court became the factfinder at the hearing on the motion for new trial.

However, we need not decide whether that difference is sufficient to distinguish the present case from Guzman, Ross, and their progeny. Even under the Court of Appeals’s apparent

interpretation of our caselaw, the trial court acts within its discretion so long as the record provides some basis for disbelieving the testimony. Such bases include, but are not limited to: evidence that the recanting witness was subject to pressure by family members or to threats from co-conspirators, evidence showing part of the recantation to be false, circumstances showing that the complainant recanted after moving in with family members of the defendant, and where an accomplice recants after being convicted.

As will be explained below, there were a number of bases in the record for the trial court to disbelieve the recanted testimony. 3. The Present Case First, the circumstances of the recantation cast doubt on its validity. As in Williams, the complainant here recanted only after she moved in with persons friendly to the defendant; in this case, she recanted after returning to live with her mother, with whom appellant had formerly resided. Second, there was evidence that appellant’s father pressured J.K. into recanting her allegations.

There was evidence that Jack threatened J.K. during trial and that he was mean to J.K. before she recanted and nice to her after she recanted. Third, there is evidence that J.K. gave a non-credible story about how she formed the idea to accuse appellant — that the idea was suggested by her three-year-old stepsister. Although the trial court found J.K. to lack credibility for this very reason, the Court of Appeals refused to consider this evidence because J.K. denied attributing the idea to her younger stepsister and because Investigator Buster admitted that J.K. made a comment regarding an older friend.

But even under the Court of Appeals’s interpretive gloss of our past precedents, it is not up to the appellate court to decide which evidence to believe. Obviously, the trial court chose to believe the investigator and the CPS worker and chose to disbelieve the child’s denials. Finally, there was testimony that J.K. recanted because her mother needed appellant financially and emotionally. The Court of Appeals’s only reason for refusing to consider this evidence is that the trial judge did not refer to it in his findings.

The more probable conclusion from the record is that he did believe this evidence because it came from the same sources as did the evidence that J.K. attributed the idea of the accusation to her younger stepsister: Investigator Buster and CPS worker Johnson. The Court of Appeals erred in concluding that the trial court abused its discretion in disbelieving the complaining witness’s recantation. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. HOLCOMB, J., filed a dissenting opinion in which MEYERS, J., joined

part I with note and PRICE, and JOHNSON, JJ., joined. . At the punishment phase, the State introduced evidence of several extraneous offenses committed by appellant: molesting his sister, exposing his genitals to a female under age seventeen, having sexual intercourse with another female under age seventeen, and possessing a firearm as a felon. We express no opinion on whether a trial court may consider punishment phase evidence in connection with determining the credibility of a recantation on a motion for new trial. We will address the propriety of the trial court’s ruling without considering this evidence. .

Keeter v. State, 43 S.W.3d 667, 673-674 (Tex.App.-Waco 2001, pet. granted). . Id. at 674. .See Id. at 674-676. . Id. at 675. . Id. . Id. . Id. at 675 n. 5. . Judge Holcomb’s dissenting opinion treats the issue here as a factual sufficiency question, and would extend to all fact-bound questions the Clewis standard of review. But factual sufficiency of the evidence has not been raised and it is, moreover, not an issue in this case. And, the Court of Appeals never held that the evidence was factually insufficient.

We are not bound — constitutionally or otherwise — by a determination that was never made. . 32 S.W.3d 853 (Tex.Crim.App.2000). . 955 S.W.2d 85 (Tex.Crim.App.1997). . All references to articles are to the Texas Code of Criminal Procedure. . Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). . Id. . See, for example, United States v. Bagley, 473 U.S. 667, 680-681, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). .

Article 40.03(6)(Vemon's 1979). . Ayers v. State, 606 S.W.2d 936, 941 (Tex.Crim.App.1980); see also Jones v. State, 711 S.W.2d 35, 36-37 (Tex.Crim.App.1986); Boyett v. State, 692 S.W.2d 512, 516-516 (Tex.Crim.App.1985); Bolden v. State, 634 S.W.2d 710, 711-712 (Tex.Crim.App.1982). . Boyett, 692 S.W.2d at 516; Etter v. State, 679 S.W.2d 511, 515 (Tex.Crim.App.1984). See also Jones, 711 S.W.2d at 37. . Tex.R.App. P. 30(b)(6)(West 1992). . Moore v. State, 882 S.W.2d 844, 849 (Tex.Crim.App.1994). . Jones, 711 S.W.2d at 36; Etter, 679 S.W.2d at 515. . Todd v. State, 601 S.W.2d 718, 721 (Tex.Crim.App.1980); Dillard v.

State, 550 S.W.2d 45, 52 (Tex.Crim.App.1977); Wilson v. State, 445 S.W.2d 213, 216 (Tex.Crim.App.1969). . Boyett, 692 S.W.2d at 517; Etter, 679 S.W.2d at 515. . 375 S.W.2d 449, 451 (Tex.Crim.App.1964). . Id. . Jones, 711 S.W.2d at 37 n. 4. . Todd, 601 S.W.2d at 721; Dillard, 550 S.W.2d at 52; Williams, 375 S.W.2d at 450-452. . 32 S.W.3d at 855. . Kober v. State, 988 S.W.2d 230, 233 (Tex.Crim.App.1999); Quinn v. State, 958 S.W.2d 395, 401-402 (Tex.Crim.App.1997). . See Ross and Guzman, generally. . Kober, 988 S.W.2d at 233. . Quinn, 958 S.W.2d at 402. . Todd, 601 S.W.2d at 721. . Dillard, 550 S.W.2d at 52. .

Williams, 375 S.W.2d at 451-452. . Id. at 452. . Drew v. State, 743 S.W.2d 207, 228-229 (Tex.Crim.App.l987)("It is not unusual for one of two convicted accomplices to assume the entire fault and thus exculpate his code-fendant by the filing of a recanting affidavit or other statement... .In such situations recanting affidavits, other statements and witnesses are viewed with extreme suspicion by the courts.”); see also Wilson, 445 S.W.2d at 214-216. . Judge Holcomb concludes that the credibility of a recanting witness cannot affect the materiality of the recantation.

However, this conclusion is contrary to our prior caselaw interpreting the old motion for new trial statute, which contained substantially the same wording now found in

Article 40.001. According to that caselaw, whether a recantation is “material” includes a consideration of the victim’s credibility in light of the evidence presented. Neither the Court of Appeals nor appellant has taken the position taken in the dissent that due to the language of Art. 40.001, credibility is not an issue, and that all victim recantations require a new trial. Appellant's position, and that of the Court of Appeals, is simply that the trial court abused its discretion in this case because the victim’s recantation was probably true. .

Judge Meyers take? us to task for failing to defer to the Court of Appeals’s determination. But we are empowered to review cases in which "a court of appeals has so far departed from the accepted and usual course of judicial proceedings ... as to call for an exercise of the Court of Criminal Appeals’ power of supervision.” See Tex.R.App. P. 66.3(f).