Opinion
WR-94,530-01
02-22-2023
EX PARTE TONY GENE WILLIAMS, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR 18-130 IN THE 4TH DISTRICT COURT FROM RUSK COUNTY
ORDER
PER CURIAM
Applicant was convicted of aggravated robbery and sentenced to life years' imprisonment. The Sixth Court of Appeals affirmed his conviction. Williams v. State, No. 06-20-00024-CR (Tex. App.-Texarkana Nov. 25, 2020) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends, among other things, that new evidence-a CODIS Hit Report linking DNA evidence found at the crime scene to another person-shows that he is actually innocent or, alternatively, entitled to relief under Texas Code of Criminal Procedure Article 11.073. Applicant also contends that trial counsel was ineffective because he failed to consult a time-of-death expert. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); Tex. Code Crim. Proc. art. 11.07 ; Strickland v. Washington, 466 U.S. 668 (1984). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 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 wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether Applicant has established that he is actually innocent. The trial court shall also make findings of fact and conclusions of law as to whether Applicant entitled to a new trial under Article 11.073, including whether: (1) the CODIS Hit Report is relevant scientific evidence which was not available at the time of Applicant's trial; (2) the scientific evidence would be admissible under the Texas Rules of Evidence at a trial held on the date of the application; and (3) had the scientific evidence been presented at trial, on the preponderance of the evidence Applicant would not have been convicted. Finally, the trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient and Applicant was prejudiced. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.