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Lawyers: Rape Case Sign Of Texas Court's Shift

DALLAS (CBSDFW.COM/AP) — A Fort Worth police officer was convicted of raping a 13-year-old girl, based almost solely on her testimony in 1995. Then questions surfaced after she appeared to contradict herself when alleging a separate rape, and defense attorneys insisted Brian Franklin deserved a new trial.

Their argument didn't work back then. But the Texas Court of Criminal Appeals recently changed course, accepting the appeal under the same argument it denied a decade ago: that a witness potentially lying was enough for a new trial.

The court is giving the father of two a new chance Thursday to argue in state district court in Fort Worth that his conviction and life prison sentence should be overturned. Prosecutors stand by the testimony of the accuser, who is now 33 and expected to testify at Thursday's hearing.

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. 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.

Since 1995 there have been dozens of North Texas police officers accused and convinced of various felonies. Just last year, in Fort Worth another officer was arrested for sexual assault and official oppression.

The case against Franklin didn't have forensic evidence tying him to the alleged rape. Instead, it rested entirely on the testimony of the accuser. The girl said Franklin raped her when she was 13 in the backyard of her father's home in March 1994.

The girl also said she had never had a sex before the rape. But four years after Franklin's conviction, prosecutors learned she had separately alleged that her stepfather had raped her for several years, starting when she was 6 years old, which conflicted with her testimony in Franklin's case.

Franklin appealed, and a judge ruled in 2000 that the girl committed perjury and recommended that his conviction be tossed. But two years later, the Texas Court of Criminal Appeals said that while the evidence "certainly calls into question her veracity in general," it wasn't enough to warrant a new trial. Franklin needed to establish his innocence "by clear and convincing evidence and not merely that he would be found not guilty by a subsequent jury," the court said.

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

Franklin's lawyers cite that case in their appeal.

"What we can prove and what is the truth is that she lied," said one of Franklin's attorneys, Dick DeGuerin. "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 are planning to attend Thursday's hearing and are hopeful about its outcome, according 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."

(©2014 CBS Local Media, a division of CBS Radio Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)

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