Opinion
NO. WR-87,451-01
01-10-2018
EX PARTE JERRY DON WHATLEY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR05-00442A IN THE 294TH DISTRICT COURT FROM VAN ZANDT 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 fifty years' imprisonment. The Sixth Court of Appeals found the evidence insufficient and reversed the judgment of the trial court. Whatley v. State, 415 S.W.3d 530 (Tex. App.—Texarkana 2013). This Court reversed the judgment of the court of appeals and remanded the case to the court of appeals. Whatley v. State, 445 S.W.3d 159 (Tex. Crim. App. 2014). The court of appeals deleted an order that Applicant pay $3,249.00 in attorney fees and affirmed the judgment of the trial court. Whatley v. State, No. 06-12-00117-CR (Tex. App.—Texarkana Dec. 30, 2014) (not designated for publication).
Applicant contends, among other things, that the State failed to disclose a video-recorded interview between his wife and police officers.
Applicant has alleged facts that, if true, might entitle him to relief. Brady v. Maryland, 373 U.S. 83 (1963); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 shall order trial counsel and the prosecutor to respond to Applicant's claim. 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 him 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 State failed to disclose this evidence and whether it was favorable and material. 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: January 10, 2018
Do not publish