IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
FROM CAUSE NO. 2002-8-5810 IN THE 24TH JUDICIAL DISTRICT COURT OF CALHOUN 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 pleaded guilty to the offense of aggravated sexual assault of a child, in exchange for ten years of deferred adjudication community supervision. He later pleaded true to various violations of the terms of his community supervision, and punishment was assessed at twenty years' confinement. No direct appeal was taken.
Applicant contends inter alia that he has newly-discovered evidence of his innocence that the State did not reveal until after he had entered his plea of guilty to the original charges and his plea of true to the allegations in the motion to adjudicate. Furthermore, Applicant alleges that his trial counsel was ineffective for failing to investigate or obtain evidence to support his claim of innocence. Applicant also alleges that counsel told him prior to the entry of both pleas that the State had DNA test results which inculpated him, when in fact the State did not have DNA test results until after the original plea. It was not until counsel provided Applicant with a copy of the test results after the adjudication of guilt that Applicant allegedly learned that the results were not inculpatory. Applicant contends that he would not have pleaded guilty or true if he had known the results of the DNA testing.
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 may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from counsel, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.
If the trial court elects to hold a hearing, the court should 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 whether Applicant or his counsel were provided with the results of the DNA testing prior to the entry of the original plea, or at any time prior to the adjudication of guilt. The court shall also make findings as to whether counsel ever told Applicant that the State had test results that inculpated Applicant, and as to whether Applicant ever told counsel that he was innocent of this offense. The court shall make findings as to what counsel did to investigate this case prior to the entry of the plea. The court shall make findings as to what other evidence of Applicant's guilt was introduced in support of Applicant's guilty plea. 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.
Because this Court does not hear evidence, Ex Parte Rodriquez, 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 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 and twenty days of the date of this order. (2)
IT IS SO ORDERED THIS THE 18TH DAY OF JANUARY, 2006.
EN BANC
DO NOT PUBLISH
1. 2.