Douglas, Justin Michael ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-68,621-01

---

EX PARTE JUSTIN MICHAEL DOUGLAS, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. C-213-008223-0970911-A IN THE 213^TH JUDICIAL DISTRICT COURT FROM TARRANT COUNTY

---

  Per curiam.

O RDER  

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 guilty to possession of a controlled substance and was sentenced to three (3) years' imprisonment. He did not appeal his conviction.

Applicant contends that his conviction is invalid because new evidence has come to light showing that the police officer who sponsored the evidence in this case was untruthful in his supporting affidavit in an unrelated case. The State has provided an affidavit from a prosecutor with the Tarrant County's District Attorney's Office, stating that had the District Attorney's Office been aware of this information prior to the disposition of Applicant's case, the prosecution would not have been pursued. The trial court has recommended that relief be granted. However, it is unclear from the record how the police officer's actions in an unrelated case affected the investigation and prosecution of this case. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall order the Tarrant County's District Attorney's Office to file an affidavit explaining how the police officer's actions in an unrelated case affected the investigation and prosecution of this case. The affidavit shall identify the police officer and shall detail all the actions which the police officer took in this case. 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to what actions the police officer took in Applicant's case. The trial court shall make findings of fact as to the degree, if any, to which the police officer's actions affected the investigation and prosecution of this case. 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 14, 2007

Do not publish