Gaston, Reginald Bernard ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-94,138-01
EX PARTE REGINALD BERNARD GASTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 895072-A IN THE 208TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam. NEWELL, J., concurred.
ORDER
Applicant was convicted of aggravated robbery and sentenced to twenty-six years’
imprisonment. The First Court of Appeals affirmed his conviction. Gaston v. State, No. 01-02-
00742-CR (Tex. App.—Houston [1st] Jun. 19, 2003) (not designated for publication). Applicant
filed this application for a writ of habeas corpus in the county of conviction, and the district clerk
forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.
This application was file-stamped in Harris County on July 28, 2010. An order designating
issues was signed by the trial judge on August 16, 2010. This application was not received by this
Court until September 8, 2022. There is no indication in the record of any action by the trial court
after the order designating issues was signed. Nor is there any indication as to why this application
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was pending in Harris County for so long without any action by the clerk or the trial court.
Applicant contends, among other things, that he is actually innocent. He provides an
affidavit from his co-defendant stating that Applicant’s only role in the offense was trying to stop
it from happening. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte
Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). Accordingly, the record should be developed.
The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, §
3(d).
As a preliminary matter, the trial court shall make findings of fact as to why no action was
taken by the trial court or the clerk between the entry of the order designating issues and the
forwarding of the application to this Court. The trial court shall obtain a response from Applicant
as to whether Applicant still wants to pursue this application, and shall include that response in the
supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial
court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall
then return the application to this Court.
If Applicant indicates that he does want to pursue this application, the trial court shall order
trial counsel to respond to Applicant’s claim. In developing the record, the trial court may use any
means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine
whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the
trial court shall appoint counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art.
26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of
counsel’s name.
The trial court shall make findings of fact and conclusions of law as to whether Applicant
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is actually innocent of aggravated robbery. The trial court shall make specific findings as to the
credibility of the statements made in the affidavit by Applicant’s co-defendant Anthony Arceneaux.
The trial court may make any other findings and conclusions that it deems appropriate in response
to Applicant’s claim.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: December 07, 2022
Do not publish