Opinion
NO. WR-16,351-14
09-13-2017
EX PARTE ALONZO DIEGO FULLER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR12265-J IN THE 35TH DISTRICT COURT FROM BROWN 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 and sentenced to ninety-nine years' imprisonment. The Eleventh Court of Appeals affirmed his conviction. Fuller v. State, No. 11-03-00093-CR (Tex. App.—Eastland Oct. 13, 2005)(not designated for publication).
Applicant contends that he has new evidence which was not turned over to the defense showing that he is actually innocent of the offense. He also alleges that false testimony resulted in his conviction.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Elizondo, 947 S.W.2d 202, 208 (Tex. Crim. App. 1996); Ex parte Chabot, 300 S.W.3d 768, 772 (Tex. Crim. App. 2009). 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).
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 regarding if and when the July 18, 1991 DNA lab report authored by Fred Zain was turned over to the defense. The trial court shall make findings as to whether there is physical evidence available in this case which could be retested. The trial court shall make a finding regarding the status of Applicant's 2014 request for Chapter 64 testing. The trial court shall make findings as to whether Fred Zain testified falsely at Applicant's trial, and if so, whether that testimony was material to his conviction. The trial court shall make findings of fact and conclusions of law in regard to Applicant's claim that he is actually innocent and whether the evidence he provides is newly discovered. Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). 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 must be requested by the trial court and shall be obtained from this Court. Filed: September 13, 2017
Do not publish