Opinion
No. WR-65,252-01
Delivered: August 30, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. 2002-CR-4781-W1 in the 227th District Court from Bexar County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of murder and sentenced to 45 years' imprisonment. The Fourth Court of Appeals affirmed his conviction in an unpublished opinion. Leos v. State, No. 04-03-00336-CR (Tex.App.-San Antonio, delivered February 2, 2005, no pet.). Applicant contends, inter alia, that the State engaged in misconduct in obtaining his conviction. Specifically, he contends that the prosecutor coerced a witness to testify untruthfully. Applicant has provided an affidavit from this witness in which she recants her testimony identifying Applicant as the assailant and in which she states that the prosecutor threatened her if she did not testify as directed. The trial court finds that this claim was available at trial and on direct appeal but that Applicant failed to raise it. Thus, the trial court concludes that the claim is procedurally barred. This Court, however, needs additional information before it may reach a decision. Applicant contends that his mother was contacted by the witness in February 2004, which was approximately ten moths after the date of the judgment, and Applicant has provided an affidavit dated December 22, 2005 (notarized on January 30, 2006). Thus, it appears from the record provided to this Court that the prosecutorial misconduct claim may not have been available at the time of trial and appeal. The trial court, therefore, shall make additional factual findings as to when this claim was available and whether it is now procedurally barred from review. The trial court shall also make factual findings regarding the credibility of the witness's allegations and whether, if the allegations are found credible, the misconduct resulted in Applicant being denied a fair trial. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1997), 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. In addition to the factual findings ordered to be made, 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. The trial court shall also supplement the record with any documents that support its findings and conclusions. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.