IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 007-0681-05-B IN THE 7TH DISTRICT COURT
FROM SMITH COUNTY
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of sexual assault and sentenced to twelve (12) years' imprisonment. He did not appeal his conviction.
Applicant contends inter alia that he is actually innocent of this offense and that the victim has made a credible recantation. He alleges that his guilty plea was involuntary because counsel rendered ineffective assistance. Specifically, he alleges that counsel told him that he would get life imprisonment unless he confessed and that he, thus, pleaded guilty to an offense he did not commit. Applicant acknowledges that he has filed a prior 11.07 application for writ of habeas corpus but argues that he is not barred from raising his claims because he is supporting his claims with evidence which was unavailable when he filed his prior writ. In support of his claim, he has attached a recantation affidavit from the victim, Sara Nicole Miel, dated 4/17/2007. He has also attached witness statements from the victim's mother, Patricia Miel, and the victim's sister, Jessica Miel, dated May 18, 2006, and June 26, 2006 respectively.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Tuley, 109 S.W.3d 388, (Tex. Crim. App. 2002); Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall provide Applicant's trial counsel with the opportunity to respond to Applicant's claim of ineffective assistance of counsel. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to when and how Applicant found out about the victim's recantation. The trial court shall make findings of fact as to whether counsel advised Applicant that he would get life imprisonment unless he pleaded guilty and, if so, whether counsel's advise was deficient. The trial court shall make findings of fact as to whether counsel was aware about the victim's recantation and, if so, when counsel became aware of said recantation. The trial court shall also make findings of fact as to whether the victim's recantation is credible and, if so, as to whether Applicant is actually innocent of this offense. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: August 22, 2007
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