IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 19023 IN THE 6TH DISTRICT COURT
LAMAR COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated robbery, and punishment was assessed at eighty (80) years' confinement. Applicant's conviction was affirmed on appeal. Chancellor v. State, No. 06-03-00051-CR (Tex. App. --Texarkana, delivered February 18, 2004, pet. ref'd).
The Court received the first writ application, No. 60,494-01, on October 26, 2004. On December 8, 2004, this Court denied the writ application without written order. This Court has determined that the writ was denied in error. Accordingly, the Court withdraws its prior denial of the application without written order and reconsiders that application on its own motion. Simultaneous with reconsidering the first application, the Court considers the second application, received by this Court on February 14, 2006.
Applicant contends that he received ineffective assistance of counsel and that he is actually innocent. Specifically, he complains that counsel was ineffective when he: failed to contact a favorable witness before trial, Applicant's parole supervisor Dede Thomas; improperly impeached a defense witness, Applicant's wife, with inadmissible evidence of a prior bad act; allowed the State's witness to testify in narrative form; failed to effectively cross-examine the State's witnesses concerning discrepancies in their descriptions of the suspect; failed to object to the introduction of evidence obtained by an illegal search and seizure; and failed to object to an improperly suggestive photo line-up, and the witnesses' identifications from it. The appellate court found that the record on appeal was insufficiently developed to resolve many of these claims.
Additionally, Applicant asserts that he has newly discovered evidence of actual innocence, in that an eye witness, Glenna Harper, recently came forward in response to an advertisement by an actual innocence project, and she will testify that she observed a person who did not look like Applicant leaving the scene of the offense. Her affidavit, attached to the application, lacks the specificity needed for a determination of whether the information she has is sufficiently reliable and exculpatory to support a finding of actual innocence.
The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall hold a hearing and make findings of fact.
The court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
Following receipt of additional information, the trial court shall make findings of fact as to the reasons for counsel's conduct, and whether and how such conduct affected the outcome of the trial. Hernandez v. State, 726 S.W.2d 53, 55 (Tex. Crim. App. 1986). The trial court shall also make findings of fact stating whether, under the circumstances, Glenna Harper's testimony is credible and reliable, and weighing this testimony against the evidence of guilt adduced at trial. The trial court shall make findings as to whether Applicant has proven by clear and convincing evidence that a jury would acquit him based on the newly discovered evidence. Ex parte Elizondo, 947 S.W.2d 202, 206 (Tex. Crim. App. 1996). The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. The trial court shall supplement the habeas record with copies of all documents upon which its findings are based.
Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety (90) days of the date of this order. (1) A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within one hundred twenty (120) days of the date of this order. (2)
IT IS SO ORDERED THIS THE EIGHTH DAY OF MARCH, 2006.
EN BANC
DO NOT PUBLISH
1. 2.