Gonzales, Alejandro Farias ( 2019 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-77,198-07
EX PARTE ALEJANDRO FARIAS GONZALES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1152889-F
TH
IN THE 248 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
aggravated sexual assault of a child and sentenced to forty years’ imprisonment. The First Court
of Appeals affirmed the conviction. Gonzales v. State, No. 01-08-00173-CR (Tex.
App.—Houston [1st] July 16, 2009).
Applicant has filed five prior 11.07 applications and is therefore subject to a bar on any
subsequent applications. TEX . CRIM . PRO . Art. 11.07 § 4. However, he contends, among other
things, that he is actually innocent based on a new affidavit signed by the complainant. We
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believe that in alleged recantation cases such as this one, before we make the important decision
of whether Applicant is entitled to relief, the record should be more fully developed. The trial
court shall therefore conduct a live evidentiary hearing on the matter at which the complainant
shall be called to testify. Notice of the hearing and an opportunity to testify shall be given to
those persons who participated in the trial or the investigation.
The trial court shall make findings as to the credibility of the complaining witness’
affidavit and testimony at the habeas hearing. The court shall make further findings of fact
regarding the circumstances surrounding the complainant’s new statement, including the delay
between the trial and the affidavit. The trial court shall make findings as to whether Applicant
could have presented the information contained in the complainant’s affidavit prior to his
previous 11.07 applications. The trial court shall specifically weigh the evidence of Applicant’s
guilt against the new evidence of innocence. The trial court shall enter findings of fact as to the
credibility of each witness and as to whether Applicant is entitled to relief.
It does not appear that Applicant is represented by habeas counsel. The trial court, within
30 days of the date of this order, 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 evidentiary hearing. TEX . CODE CRIM . PROC. art. 26.04.
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
the transcription of the court reporter’s notes from the live evidentiary hearing and a copy of the
exhibits admitted, along with the trial court’s findings of fact and conclusions of law and a copy
of the trial record, including the clerk’s record and a transcription of the reporter’s record of the
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trial, 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.
Delivered: July 24, 2019
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