IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,150-02
EX PARTE JEFFREY MCDONALD, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 963695 IN THE 182ND DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
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 aggravated sexual
assault of a child and sentenced to seventeen years’ imprisonment. He did not appeal his conviction.
Applicant contends, among other things, that he is actually innocent of the offense based on
the recantation of the complainant, and that trial counsel’s errors caused his guilty plea to be
involuntary. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Tuley, 109
S.W.3d 388, 393 (Tex. Crim. App. 2002); Strickland v. Washington, 466 U.S. 668 (1984). In these
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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. If possible, the
trial court shall order trial counsel to respond to Applicant’s claims of ineffective assistance of
counsel. We believe that in recantation cases such as this one, before we make the important decision
of whether Applicant is entitled to relief, the record should be more fully developed. The trial court
shall therefore conduct a live evidentiary hearing on the matter at which, at a minimum, the
complainant shall be called to testify.
Before the trial court holds 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 and conclusions of law as to whether the
performance of Applicant’s trial counsel was deficient. The court shall also makes findings
addressing whether, but for those alleged errors, Applicant would not have pleaded guilty and would
have insisted on a trial. Additionally, the trial court shall make findings of fact and conclusions of
law in regard to Applicant’s claim that the complainant’s recantation proves he is actually innocent
of the offense. The trial court shall make specific findings addressing the complainant’s credibility.
The trial court shall specifically weigh the evidence of Applicant’s guilt against the new evidence
of innocence. See Ex parte Tuley, 109 S.W.3d 388, 393 (Tex. Crim. App. 2002). 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 claims 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
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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: February 4, 2015
Do not publish
McDonald, Jeffrey
Combined Opinion