Opinion
NO. WR-70,373-13
05-02-2018
EX PARTE PETE LAVARD RICHARDSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1044020-C IN THE 184TH 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 compelling prostitution and sentenced to life in prison.
Applicant contends that he is actually innocent of compelling prostitution. See Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). He provides an affidavit from the victim in support. The trial court entered an order designating issues on the actual innocence claim, but there are no findings in the habeas record resolving the disputed facts. Applicant also contends that the trial court wrongly limited his ability to cross-examine the victim at trial. This issue is based in the record and is not available for litigation in habeas. Ex parte Banks, 769 S.W.2d 539 (Tex. Crim. App. 1989); Ex parte Gardner, 959 S.W.2d 189 (Tex. Crim. App. 1996).
Regarding Applicant's claim of actual innocence, he has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993 S.W.2d 114 (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 resolve the factual issue of whether, by "clear and convincing evidence ... a jury would acquit" Applicant in light of the new evidence he presents in habeas when that evidence is weighed against the evidence of guilt from his trial. Ex parte Elizondo, supra; Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002). 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 and conclusions of law resolving the disputed issues. 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: May 2, 2018
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