IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-75,374-04
EX PARTE KENNY DALE JENKINS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 31259 IN THE 13TH DISTRICT COURT
FROM NAVARRO 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 nine counts of aggravated sexual assault of a child and sentenced to nine life sentences, which were ordered to run consecutively. The Tenth Court of Appeals affirmed his convictions. Jenkins v. State, No. 10-07-00307-CR (Tex. App.—Waco Oct. 14, 2009) (unpublished).
Applicant contends that the jury foreman knew the complainant and was biased. He also alleges that when the prosecutor learned of this, she committed prosecutorial misconduct when she told the complainant not to tell anyone, and did not report the issue to the court or the defense. The trial court found that Applicant’s claims were barred as subsequent under Section 4 of Article 11.07 of the Code of Criminal Procedure because he presented no newly discovered evidence. However, the record contains an affidavit from the complainant dated after Applicant’s prior writ was decided.
Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. 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 specific findings of fact and conclusions of law as to whether this claim was available to Applicant at the time he filed his previous 11.07 application. The trial court shall make further findings of fact and conclusions of law as to whether one of the jurors was biased against Applicant, depriving him of a fair trial by an impartial jury. The trial court shall also make findings of fact addressing Applicant’s contention that the prosecutor committed prosecutorial misconduct by not revealing that the juror and complainant knew each other. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: April 2, 2014
Do not publish