 Brian Franklin (Photo/David Kent/Star-Telegram)
On April 24, 1994, Franklin was charged with aggravated sexual assault of a child. The girl, who was identified as B.R., reported that Franklin, a friend of her biological father, had raped her in the backyard of her father’s home.
Franklin went to trial in Tarrant County Criminal District Court in February 1995. B.R. testified that her father, a former Fort Worth police officer, and his girlfriend were in the house when she was assaulted. She told the jury that she had never had sexual relations with anyone before the assault.
During cross-examination by Franklin’s attorney, Michael Ware, the girl was unable to recall the specific date of the assault. Evidence suggested that the only date when Franklin and B.R. were at the same place at the same time was March 6, 1994, but there was no evidence the assault occurred that day. Prosecutors noted that they did not have to prove an exact offense date and contended the assault occurred around March 12, 1994, when the girl was on spring break and spending time with her father.
The girl’s mother testified that the day after B.R. returned home from visiting her father, she found a pair of bloodstained underwear in the laundry that B.R. brought home. The underwear was not presented in evidence because the girl’s mother had bleached them. The girl’s mother also testified that the girl’s health and behavior subsequently changed. B.R. began wearing loose and baggy clothing, and having migraine headaches, trouble sleeping and frequent nightmares. She became fearful at school, avoided going outside, and refused to go into the backyard.
Dr. Jan Lamb testified that she examined B.R. on April 20, 1994 and that B.R. told her that Franklin had raped her. Lamb testified that she found a rupture in a certain area of the hymen that would have caused bleeding and indicated blunt force trauma. Lamb admitted during cross-examination that blunt force trauma alone was not an indication of rape—the physical evidence she found could have come from sexual intercourse occurring for the first time. No rape kit was collected because of the several week gap between the alleged assault and the report to authorities.
Franklin did not testify, although he denied the assault when questioned by police. He had been fired in 1991 following allegations he made sexual advances toward female co-workers at a second job, but was later rehired. In September 1993, he was place on indefinite suspension after his wife alleged violation of a protective order in the form of telephone harrassment.
The defense presented evidence that rain had fallen on the day of the alleged assault, but the girl’s mother had not noticed any mud on the girl’s clothing—a likely prospect if she were raped on the ground in the backyard as she claimed.
On February 24, 1995, the jury convicted Franklin of aggravated sexual assault of a child. He was sentenced to life in prison.
In May 1998, the Tarrant County District Attorney’s office informed Franklin’s attorney that B.R. had signed an affidavit stating that her stepfather had sexually assaulted her from the time she was six years old until she was 16, when her mother moved her away from her stepfather. The affidavit—which directly contradicted the girl’s testimony at Franklin’s trial that she had never had sex before the assault—was part of an investigation that ultimately resulted in the stepfather pleading guilty to a charge of injuring a child and being sentenced to probation.
Franklin then filed a state law petition for a writ of habeas corpus seeking a new trial. At a hearing on the petition, Rose Salinas, the lead prosecutor at Franklin’s trial, testified that at the time of the trial, she believed B.R. was a credible witness. If she had known that B.R. had previously had been assaulted by her stepfather, however, her opinion would have been different. Salinas also testified that she would not have presented the medical evidence that was introduced at Franklin’s trial. Salinas stated that “had we been in trial and this child had committed perjury and I found out about it after the fact… I might have moved to dismiss the case. And I’m very serious about the fact that that’s a very strong possibility that it would have happened.”
Dr. Lamb testified for the defense that if she had known that B.R.’s stepfather had sexually assaulted her, she would not have testified at the trial that the alleged assault by Franklin caused the blunt force trauma to her hymen.
Franklin testified and presented a series of documents, including credit card statements, time- and date-stamped receipts, and a phone bill to provide an alibi for the time of the alleged offense.
B.R. testified and admitted she had lied when she told the jury that she had never before engaged in sexual intercourse. However, she insisted that Franklin had assaulted her. She testified she had not disclosed the sexual abuse by her stepfather because she was afraid of him. B.R. said that her stepfather accompanied her to all of the meetings with prosecutors and counselors and was even present when Dr. Lamb conducted her examination. B.R. said her stepfather was angry when he found out that B.R. reported the sexual assault by Franklin because he was afraid that people would find out about his own actions.
Initially, the judge ruled that Franklin had shown “through clear and convincing evidence” that the evidence of B.R.’s false testimony “would probably change the verdict on retrial.” The judge later amended his finding to say “that no reasonable juror would have convicted (Franklin) in light of the new evidence.” The judge recommended that the Texas Court of Criminal Appeals grant the writ.
However, in 2002, Franklin’s bid for a new trial was denied, when the Court of Criminal Appeals declined to issue the writ. The court ruled that the new evidence related only to the impeachment of B.R.'s claim that she did not have sexual relations prior to the assault by Franklin. “It certainly calls into question her veracity in general, but only collaterally affects her accusation against (Franklin),” the court said. The court held that the legal standard required to overturn the conviction was that the evidence show actual innocence.
In 2009, the Court of Criminal Appeals set aside the murder conviction of Clay Chabot after DNA testing showed a witness lied about his role in the crime. That ruling indicated that the court was willing to reconsider perjury as a basis for overturning a conviction, and in 2014, it ordered a new hearing in Franklin’s case.
In August 2014, B.R.—who was then 33 years old—admitted she had falsely testified at the trial, but maintained that her testimony about the rape by Franklin was true.
Dick DeGuerin, one of Franklin’s attorneys, asked B.R, “But the fact is, you did lie, didn’t you?”
“Yes, I did,” she replied.
In April 2016, the Court of Criminal Appeals vacated Franklin’s conviction based on the “unknowing use of false evidence.” On May 5, 2016, Franklin was released on bond after more than 21 years in prison.
Franklin went to trial a second time in December 2016. He testified and presented the credit card bills, receipts, work records and weather reports. On December 16, 2016, the jury acquitted him.
– Maurice Possley
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