Giddens, Jimmy Lathel ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-65,727-01

---

EX PARTE JIMMY LATHEL GIDDENS, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18,480-C IN THE 278^TH JUDICIAL DISTRICT COURT FROM WALKER COUNTY

---

   Per curiam. O R D E R

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 burglary with intent to commit sexual assault and, following the revocation of probation, he was sentenced to eight (8) years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because counsel did not investigate the facts of the case or attempt to interview the complainant, so that neither he nor Applicant learned prior to trial that the complainant would have testified that she did not make the statements contained in the police report, if Applicant had pleaded not guilty. Alternatively, Applicant has alleged actual innocence based on newly discovered evidence. The application includes an affidavit from the complainant in which she states that Applicant did not commit the offense, she did not allege that he committed the offense, and after she made an initial statement to a law enforcement officer, no one contacted her prior to trial.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 addition, counsel should be given an opportunity to respond. In the appropriate case, the trial court may rely on its personal recollection. 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 and conclusions of law in regard to Applicant's claims that his plea was involuntary and that he is actually innocent. The trial court shall determine whether Applicant received the effective assistance of counsel and shall assess the reliability and weight of the new evidence. 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. 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.

Filed: November 8, 2006

Do not publish