Opinion
No. WR-43,109-02
Delivered: March 29, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. F-96-0263-B in the 158th Judicial District Court, Denton County.
EN BANC.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated sexual assault, and punishment was assessed at twelve (12) years' confinement. Applicant's conviction was affirmed on appeal. Fruzia v. State No. 02-97-004-CR (Tex.App.-Fort Worth, delivered January 8, 1998, pet. ref'd). Applicant contends that newly discovered evidence proves that he is actually innocent of the offense. Specifically, he offers an affidavit from the victim stating that Applicant never sexually assaulted him and that someone else did. The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d). The trial court shall make a finding of fact to determine the credibility of the recantation affidavit in the existing record. In making this determination, the trial court may order affidavits, depositions, or interrogatories, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection and existing court records. The trial court shall make findings of fact, assessing the reliability of the new evidence and its weight against the evidence adduced at trial. The trial court shall make findings as to whether Applicant has proven by clear and convincing evidence that no reasonable juror would convict him in light of the newly available evidence. Ex parte Elizondo, 947 S.W.2d 202, 206 (Tex.Crim.App. 1996). The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety (90) days of the date 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 returned to this Court within one hundred twenty (120) days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.
Any extensions of this time period shall be obtained from this Court.