Burrell, Ashley Charles ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-80, 596-01
EX PARTE ASHLEY CHARLES BURRELL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR28712-A IN THE 75TH DISTRICT COURT
FROM LIBERTY 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
robbery and sentenced to imprisonment for seventy-four years.
At Applicant’s trial, a co-defendant—Malcolm Jamal Brooks—testified that he, Applicant,
and another co-defendant, who did not testify, committed the armed robbery. In his habeas
application, Applicant alleges, inter alia, that co-defendant Brooks lied. Brooks provided a
declaration that Applicant has attached to the application. In it, Brooks avers that Applicant did not
commit the robbery with him and that he perjured himself at Applicant’s trial.
-2-
The trial court conducted an evidentiary hearing, to which Brooks was brought. Because the
trial court was concerned about possible aggravated perjury charges, it appointed counsel to Brooks.
Brooks conferred with his lawyer, who informed the trial court that Brooks wanted to retract his
declaration. When the trial judge wanted to hear personally from Brooks, the Bailiff informed the
court that Brooks was refusing to enter the courtroom. After further inquiry, the trial court removed
Applicant from the courtroom, and Brooks agreed to testify regarding the declaration. Brooks told
the trial judge that he was retracting the declaration and that he would not further testify as provided
by the Fifth Amendment. Brooks was excused.
After the habeas hearing, Brooks mailed habeas counsel another declaration. He explained
that he retracted the prior declaration at the evidentiary hearing because his lawyer told him if he did
not do so, “[he would be charged] with a 1st degree felony aggravated perjury and that they would
give me the maximum and stack the sentence on top of the [12-year] sentence I’m already serving
[for the robbery]. I retracted the affidavit out of fear of getting more time but now I wish to proceed.”
The trial court entered findings and recommends that the habeas application be denied. The
trial court, however, did not make findings regarding the last declaration from Brooks stating that
he desired to proceed even though he knew of the possibility of aggravated perjury charges. The trial
court shall resolve the issue of whether Brooks will testify as to Applicant’s innocence, and if he
does, whether Brooks’s testimony shows Applicant to be actually innocent when considered against
the evidence of Applicant’s guilt. Ex parte Elizondo, 947 S.W.2d 202, 205 (Tex. Crim. App. 1996);
Ex parte Tuley, 109 S.W.3d 388, 393 (Tex. Crim. App. 2002).
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. To resolve the disputed issues, 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
-3-
court may rely on its personal recollection. Id. It appears that Applicant continues to be represented
by appointed habeas counsel. If the trial court elects to hold a hearing, it shall determine whether
Applicant continues to be so represented. If Applicant is not represented by counsel, and if
Applicant is indigent and wishes to be so represented, the trial court shall appoint an attorney to
represent Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as discussed above, and
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. 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 forwarded to this Court within
120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: November 5, 2014
Do not publish