Opinion
08-21-2013
EX PARTE JOSE CONCEPCION MENDOZA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 692486-A IN THE 180TH 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 injury to a child and sentenced to sixty years' imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Mendoza v. State, No. 14-95-00704-CR (Tex. App.—Houston [14th Dist.] 1997, pet. ref'd).
On September 21, 2011, we denied the -01 application. There Applicant claimed that he was denied his right to contact a Mexican consular official and that trial counsel failed to investigate alternative theories of death. Applicant also claimed in a supplemental ground that he was factually innocent. This supplemental ground was not, however, forwarded to this Court until after the -01 application was denied. Accordingly, we now withdraw our previous denial on our own motion and remand this application to the trial court for further findings of fact and conclusions of law. 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make further findings of fact and conclusions of law as to whether the evidence Applicant relies on is newly available or discovered. Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). The trial court shall also determine whether Applicant has shown by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence. Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). 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 shall be obtained from this Court. Do not publish