Boone, James Daniel ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. WR-64,631-02, 03 and 04

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EX PARTE JAMES DANIEL BOONE, Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 13034 AND 13035 IN THE 253^rd JUDICIAL DISTRICT COURT

CHAMBERS COUNTY

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Per Curiam.

O R D E R  

These are applications for a writ of habeas corpus which were transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. In cause number 13034, Applicant was convicted of one count of aggravated assault, and one count of aggravated assault of a public servant, and punishment was assessed at life imprisonment in each count. In cause number 13035, the Applicant was convicted of evading arrest, and punishment was assessed at ten years confinement. Applicant's convictions were affirmed on appeal. Boone v. State, Nos. 01-04-00870-CR, 01-04-00871-CR, and 01-04-00882-CR (Tex. App. --Houston [1^st Dist.], delivered June 23, 2005, no pet.).

Applicant contends, inter alia, that prosecutorial misconduct occurred in these causes. Specifically, the Applicant contends that the prosecutor, with the assistance of jail officials, used "force and extreme violence to beat me down" in order to obtain evidence.

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order an affidavit from Mr. Dan Bradley, 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, the court 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.

Following receipt of additional information, the trial court shall make findings of fact as to whether prosecutorial misconduct occurred in these causes. The trial court shall also make findings of fact and conclusions of law regarding whether the Applicant has abused the writ process by filing a frivolous writ under the provisions of Section 498.0045, of the Texas Government Code. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of these applications for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), these applications for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾

IT IS SO ORDERED THIS THE 13^th DAY OF SEPTEMBER, 2006.

EN BANC

DO NOT PUBLISH   

1.

In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

Any extensions of this time period should be obtained from this Court.