DeLaCruz, Roberto Gonzalez AKA De La Cruz, Roberto Gonzalez

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS



NO. WR-76,781-01

EX PARTE ROBERTO GONZALEZ DE LA CRUZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 835305 IN THE 174TH DISTRICT COURT

FROM HARRIS COUNTY

Per curiam.

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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and sentenced to ninety-nine years' imprisonment. The First Court of Appeals affirmed his conviction. De la Cruz v. State, No. 01-01-00031-CR (Tex. App.--Houston [1st Dist.] June 20, 2002) (unpublished).

Applicant contends, among other things, that false testimony violated his right to due process. He alleges that the forensic evidence, including a newly amended autopsy report, proves that eyewitness and police testimony is false. The State stipulates that the credible forensic evidence contradicts eyewitness testimony, but contests Applicant's claims. The trial court held a live hearing and made findings of fact and conclusions of law recommending that this Court grant relief.

We order that this application be filed and set to determine (1) whether the false testimony claim could have been raised at trial or on appeal; (2) whether the failure to raise the issue at trial or on appeal constitutes procedural default; and (3) what harm or materiality standard applies. The parties shall brief these issues. Oral argument is permitted.

It appears that Applicant is represented by counsel. If he is not, the trial court shall determine whether he is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent them. Tex. Code Crim. Proc. art 26.04. The trial court shall send to this Court, within 30 days of the date of this order, a supplemental transcript containing: a confirmation that Applicant is represented by counsel; the order appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this Court within 60 days of the date of this order.

Filed: September 18, 2013

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