August 13, 2014

Ex-Fort Worth officer gets a chance to argue against his rape conviction, life term

Former Fort Worth police officer, sent to prison in 1995, is back in Tarrant County for a hearing Thursday on his appeal for a new trial in the rape of a 13-year-old girl.

In 1995, Fort Worth police officer Brian Franklin was convicted of raping a 13-year-old girl based almost solely on her testimony.

Later the girl appeared to contradict herself when reporting another rape, and Franklin’s defense attorneys have since tried to get him a new trial.

Their arguments didn’t work until recently when the Texas Court of Criminal Appeals changed course, accepting Franklin’s appeal under the same argument it denied a decade ago: that the possibility of a witness lying is enough for a new trial.

The court gave Franklin the opportunity to argue in court in Fort Worth that his conviction and life prison sentence should be overturned. He’ll get that chance today.

Tarrant County prosecutors stand by the testimony of his accuser, who is now 33 and is expected to testify today.

Franklin’s attorneys say the renewed case reflects a shift in the court’s willingness in recent years to accept appeals like Franklin’s that lack new DNA evidence or clear proof of innocence.

And Texas lawmakers, confronted with a series of overturned convictions, have imposed several reforms in the last decade, including new requirements that prosecutors share evidence with defense attorneys before trial.

There is no forensic evidence that Franklin raped the girl. The case rested entirely on the testimony of the accuser, who said Franklin, a friend of her father’s, raped her when she was 13 in the back yard of her father’s Lakeside home, where she visiting during spring break in March 1994. The girl said she had never had sex before the rape.

But four years after Franklin’s conviction, prosecutors learned she had separately accused her stepfather of raping her for several years, starting when she was 6.

Franklin appealed, and in 2000 state District Judge Wayne Salvant ruled that the girl committed perjury and recommended that he get a new trial.

Two years later, the Court of Criminal Appeals said that although the evidence “certainly calls into question her veracity in general,” it wasn’t enough to warrant a new trial.

“The evidence presented must constitute affirmative evidence of the applicant’s innocence,” said the majority opinion, written by appellate Judge Lawrence Meyers of Fort Worth. “A conviction that results from a constitutionally error-free trial is entitled to the greatest respect.”

But then in 2009, the same court set aside the murder conviction of Clay Chabot of Dallas after DNA proved that a witness lied about what happened the night of the crime. Chabot later pleaded guilty to the murder but was sentenced to the 22 years he already served in prison.

Franklin’s lawyers cited that case in their most recent appeal.

“What we can prove and what is the truth is that she lied,” said Dick DeGuerin of Houston, one of Franklin’s attorneys. “And that lie, undoubtedly in my mind, affected the outcome of the case.”

Tarrant County prosecutor Jack Strickland said that even if the girl’s testimony came into question, Franklin’s conviction was still appropriate.

“It’s my belief that Mr. Franklin is exactly where he deserves to be,” Strickland said.

Franklin’s mother and siblings plan to attend today’s hearing and are hopeful about its outcome, said to his brother, Paul Franklin.

“We never really dwelled on any of the setbacks for a long time, or any time really,” he said. “Fortunately, now there’s another avenue.”

The hearing is scheduled for 9 a.m. in Salvant’s courtroom, Criminal District Court No. 2

This report includes material from the Star-Telegram archives.

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