Opinion
Nos. WR-04,121-08, WR-04,121-09
December 7, 2005. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus from Cause Nos. F83-85579-Hn and F83-86548-Kn in the 195th Judicial District Court of Dallas County.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of two charges of murder, and punishment was assessed at ninety-nine years confinement. Applicant's convictions were affirmed on appeal. Allen v. State Nos. 05-83-01297-CR, 05-83-01298-CR (Tex.App.-Dallas, delivered February 7, 1985, pet. ref'd.). Applicant has filed numerous writs challenging these convictions. The first writ, filed in October, 1984 raised newly discovered evidence of innocence as its sole ground for review. That writ was denied without written order on January 9, 1985. Under the law at that time, actual innocence based on newly discovered evidence was not the proper subject of habeas review. See Ex parte Binder, 660 S.W.2d 103 (Tex.Crim.App. 1983). This was true until Binder was overruled by Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). Applicant filed a second writ challenging these convictions in April of 1993. In his second writ, Applicant claimed, inter alia, that trial counsel was ineffective for failing to raise evidence discovered just after trial in his motion for a new trial. The trial court held a hearing on Applicant's claims, and recommended granting a new trial "in the interest of justice." Because the trial court made no specific findings with respect to counsel's effectiveness, this Court remanded the matter to the trial court for specific findings as to whether counsel's performance was deficient, and whether but for counsel's alleged errors, the result of the proceedings would likely have been different. After remand, the trial court entered supplemental findings, finding that counsel could have discovered the evidence in question before trial through the exercise of reasonable diligence. However, because counsel did not discover the evidence prior to trial, the court found that counsel was correct in assuming that the motion for a new trial would not have been granted on the basis of the newly discovered evidence. Therefore, the trial court found that counsel was not ineffective for failing to raise the newly discovered evidence in the motion for a new trial. On January 25, 1995 this Court denied Applicant's writ on the findings of the trial court after a hearing. On July 31,1996, this Court dismissed another application challenging this conviction as a subsequent application. The instant writ is Applicant's first writ filed after this Court handed down a decision in Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex.Crim.App. 1996). In Elizondo this Court held for the first time that claims of actual innocence in a non-capital case are cognizable by a court in a post-conviction habeas corpus proceeding. Because Applicant's prior actual innocence claims were denied at a time when such claims were not cognizable on habeas review, this Court does not believe that Applicant's claim is barred by Section 4. Applicant now asks for consideration of this subsequent application, relying on his actual innocence claim as a "procedural gateway." See Elizondo, 947 S.W.2d at 208 ("If a petitioner . . . presents evidence of innocence so strong that a court cannot have confidence in the outcome of the trial unless the court is also satisfied that the trial was free of non-harmless constitutional error, the petitioner may pass through the gateway and argue the merits of his underlying claims."). The trial court again recommends granting Applicant a new trial, but again makes no specific findings as to the basis for this recommendation. Therefore, it is this Court's view that it is necessary for the matter to be remanded to the trial court for resolution of these issues. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it 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. If the trial court elects to hold a hearing, it shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. The trial court shall then make findings of fact as to whether trial counsel was ineffective for failing to discover the evidence of an alternate perpetrator before trial, or in the alternative, to move for a continuance when Officer Clary testified at trial that other people were present in the ambulance when the victim named his assailant. If the court finds that counsel was not ineffective, the court shall state the legal basis for its recommendation of granting a new trial. The trial court shall also make findings as to whether the "newly discovered" evidence of innocence is so strong that the court cannot have confidence in the outcome of the trial. The 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 Rodriquez, 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. The trial court shall resolve the issues presented within ninety days of the date of this order. A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred and twenty 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 should be provided to this Court.
Any extensions of this time period should be obtained from this Court.