Benavides, Ex Parte Jesse ( 2009 )

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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  NO. AP-76,264

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EX PARTE JESSE BENAVIDES, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2001CR0493 IN THE 187^TH JUDICIAL DISTRICT COURT

FROM BEXAR 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded no contest to sexual assault, and originally received seven years’ deferred adjudication community supervision. His guilt was later adjudicated, and he was sentenced to twenty years’ imprisonment.

            Applicant contends that he has newly discovered evidence of actual innocence. The trial court held a habeas hearing, and has entered findings of fact and conclusions of law, recommending that relief be granted. We order that this application be filed and set for submission to determine whether the newly discovered evidence presented at the habeas hearing is sufficient, when balanced against the “old” inculpatory evidence, to unquestionably establish Applicant’s innocence. The parties shall brief this issue.

            It appears that Applicant is represented by counsel. If that is not correct, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. Tex. Code Crim. Proc. art 26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental transcript containing: a confirmation that Applicant is represented by counsel; the order appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this Court on or before February 9, 2010.

Filed: December 9, 2009

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