The decision whether to retry four Central Texas men whose convictions in the 1992 shooting deaths of two teenagers in Moody were vacated rests with McLennan County District Attorney Abel Reyna.

In a 78-page order Wednesday, the Texas Court of Criminal Appeals Wednesday stopped short of finding the four men “actually innocent.”

But the state’s highest criminal court did grant writs of habeas corpus relief for Richard Bryan Kussmaul, James Edward Long, Michael Dewayne Shelton and James Wayne Pitts Jr., after the justices determined DNA evidence, which was not available at the time of the original trial, indicated the four were not responsible for killing Leslie Murphy, 17, and Stephen Neighbors, 14.

“The McLennan County Criminal District Attorney’s Office is pleased that the (Court of Criminal Appeals) agreed with our position that exoneration should not be granted in these cases," Reyna said in a statement Thursday.

"As stated in these hearings, the DA’s office will reevaluate all available evidence, in accordance with the (court's) opinion, to determine how to proceed further. “

Waco attorney Barry Johnson, who appears set to succeed Reyna in January after defeating the incumbent in the March Republican primary,

could end up handling the case.

"If I am elected district attorney, I would have to wait until I am in office to look at the files and facts in this case. It would be premature to comment either one way or the other on whether these cases should be retried,"

he said in a statement Thursday.

Murphy was raped and then she and Neighbors were both shot in the back with a high-powered rifle in March 1992 at a mobile home near Moody.

Retired state District Judge George Allen, who oversaw the original trial and imposed the original sentences, ruled on Aug. 19, 2016, that the four men convicted in case are actually innocent and would not have been convicted had modern DNA testing methods been available at the time.

The Actual Innocence Clinic in Austin had pushed for new DNA samples in the case and Allen ordered the new testing in 2016.

DNA and hair evidence presented at the hearing did not match any of the defendants’ and was from an unknown male donor, Allen wrote, and, he said the new evidence “constitutes clear and convincing evidence that no reasonable juror would have found (the defendants) guilty beyond a reasonable doubt had the new evidence been available at trial.

“The probative value of the testimony given by Long, Pitts and Shelton at Kussmaul’s trial is outweighed by the persuasiveness of the physical evidence … for two primary reasons,” Allen wrote.

Shelton, Pitts and Long all pleaded guilty to sexual assault and testified in Kussmaul’s original trial that they and Kussmaul sexually assaulted Murphy and that Kussmaul then used the rifle to shoot both victims, but they later recanted their confessions, which they claimed in testimony during a two-day hearing before Allen in July 2016 were coerced and choreographed by McLennan County Sheriff’s investigator Roy Davis.

“The plea bargains offered to Long, Pitts and Shelton created a powerful incentive for each of them to falsely admit culpability, and material inconsistencies between and among the statements made and testimony given by Long, Pitts and Shelton call into doubt the veracity of those prior incriminating statements,” Allen’s opinion also said.

Shelton, Pitts and Long agreed to plead guilty in exchange for a promise of probation, but after Kussmaul's conviction in May 1994, Allen, who was then serving as a state district judge, rejected their plea deals and sentenced each to serve 20 years in state prison for sexual assault.

Kussmaul was sentenced to life in prison and still behind bars.

Long and Pitts completed their individual 20-year sentences and were released and Shelton was paroled after he served 17 years.

An actual innocence ruling would have eliminated possibility of retrial

Had the high court issued an actual innocence ruling, there could be no re-trial.

And, local attorney Stan Schweiger said, each of the men could have been eligible for payment of as much as $80,000-a-year for each year they were incarcerated, from the State of Texas.

Unlike a not guilty verdict, which means the state failed to meet the burden of proof that a defendant committed a crime, an actual innocence ruling means the defendant did not commit the crime, period.

The legal resource Westlaw, the attorney’s Bible, says “to prove actual innocence, the defendant must submit additional evidence that undermines the court's confidence in the verdict reached by the trier of fact.

“Appellate rules normally require that this evidence must not have been available to the defendant at the time of the trial.”

In the United States, establishing actual innocence after a conviction usually is considerably more difficult than winning an acquittal at trial, however.

At trial, the defendant enjoys a due process right to the presumption of innocence, and the state is obligated to prove the guilt of the accused beyond a reasonable doubt.

However, innocence is a factual question, and once a fact-finder—judge or jury—makes a factual determination, appellate and post-conviction courts generally are bound by those factual determinations.

Appeals and post-conviction cases, by their very nature, focus on legal errors, not factual disputes.

Indeed, it is unclear whether proof of actual innocence is, in and of itself, grounds for appellate reversal.

Winning an actual innocence ruling isn't easy

There are two ways to achieve a ruling of actual innocence.

The first is direct appeal, which is limited in number and scope, and addresses only those issues raised in the lower court.

The second method of attacking the validity of a conviction is known as collateral review, and it can take many forms, such as state and federal petitions for writs of habeas corpus, petitions for writs of error coram nobis, a legal order allowing a court to correct its original judgment, and—increasingly—a newly developed form of collateral relief which allows petitioners to raise claims of actual innocence, whether through DNA testing or through some other method.

It is in collateral, post-conviction filings that claims of actual innocence are most likely to be considered.

To achieve that, rules say: “Given the extent to which an inquiry into actual innocence intrudes upon the finality of convictions and otherwise untainted jury conclusions, the court reasoned, a “threshold standard” must be met.

That means: “An applicant seeking habeas relief based on a claim of factual innocence must, as a threshold, demonstrate that the newly discovered evidence, if true, creates a doubt as to the efficacy of the verdict sufficient to undermine confidence in the verdict and that it is probable that the verdict would be different.

“An applicant who meets the threshold standard is entitled to an opportunity to establish his right to relief.”

Meeting those standards is not easy.

“In order to be entitled to relief on a claim of factual innocence the applicant must show that based on the newly discovered evidence and the entire record before the jury that convicted him, no rational trier of fact could find proof of guilt beyond a reasonable doubt,” which is exactly what Judge Allen found.

But, in spite of Allen’s request, the court refused an actual innocence finding in the case of the four.