Anderson, James Matthew ( 2010 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-71,520-02

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EX PARTE JAMES MATTHEW ANDERSON, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 41,846-D IN THE 320TH DISTRICT COURT FROM POTTER COUNTY

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   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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indecency with a child and sentenced to twelve years' imprisonment. He did not appeal his conviction.

Applicant contends, among other things, that he is actually innocent. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), 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. 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to: (1) whether the factual basis of Applicant's claim was available when he filed his previous application, Tex. Code Crim. Proc. art. 11.07, § 4(a)(1); (2) if so, whether the complainant's sworn statement is credible; and (3) if so, whether Applicant has established that he is actually innocent. 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 10, 2010

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