Opinion
No. WR-66,331-02
Filed: September 12, 2007. DO NOT PUBLISH.
On Application for A Writ of Habeas Corpus, Cause No. 02-05-03090-CR (2) In the 359th District Court, from Hopkins County.
OPINION
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 eight counts of indecency with a child, one count of aggravated sexual assault of a child, and one count of aggravated kidnapping and he was sentenced to terms of 10, 35, and 25 years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Doyle v. State, No. 07-03-00024-CR (Tex.App.-Amarillo, November 29, 2004, pet. ref'd). This application is subsequent. See Tex. Code Crim. Proc. art. 11.07, Sec. 4 (Vernon 2007). However, Applicant contends that he has newly discovered evidence showing that he is actually innocent of one indecency offense, the aggravated sexual assault, and the aggravated kidnapping, sufficient to overcome the bar against subsequent applications and entitle him to relief. Specifically, he alleges that after the first habeas application was denied he learned that the victim had sent a recantation to the court and the district attorney's office. He further asserts that his requests for information concerning this recantation have been ignored. Applicant has alleged facts that, if true, might be sufficient for his claim of actual innocence to survive the bar against subsequent applications. Ex parte Elizondo, 947 S.W.2d 202 (Tex.Crim.App. 1996). In these circumstances, additional facts are needed. 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 and court records. 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. The trial court shall make findings of fact as to whether the court or the district attorney's office received a recantation from the victim, and if so, whether the recantation constitutes a previously unavailable factual basis for Applicant's claim of actual innocence. If the court finds that the factual basis of Applicant's claim was not ascertainable through the exercise of reasonable diligence before the previously considered application was filed, then the court shall make findings as to whether the recantation goes toward affirmatively proving Applicant's innocence. If the recantation constitutes a previously unavailable factual basis for the claim and goes toward affirmatively proving Applicant's innocence, then the trial court shall assess the reliability and weight of the new evidence and make findings as to whether Applicant has proven by clear and convincing evidence that no reasonable juror would convict Applicant in light of the victim's recantation. The trial court shall 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. 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.