Mares, Anthony ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-67,617-02

---

EX PARTE ANTHONY MARES, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 24573 IN THE 3RD DISTRICT COURT FROM ANDERSON COUNTY

---

   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 aggravated robbery and sentenced to ninety-nine years' imprisonment. The Twelfth Court of Appeals affirmed his conviction. Mares v. State, No. 12-99-00278-CR (Tex. App.-Tyler, March 31, 2000, no pet.).

Applicant contends that the State failed to disclose that before trial the complainant told Jeff Herrington, then the Anderson County District Attorney, that the person who shot him was unfamiliar with the use of the gun and also the shorter of the persons he encountered during the robbery.

On February 13, 2008, we remanded this application and directed the trial court to make findings of fact and conclusions of law. On remand, the trial court adopted Applicant's proposed findings of fact and conclusions of law, which recommended that we grant relief. We believe that the record is not sufficient and that the trial court should make further findings of fact.

Applicant has alleged facts that, if true, might entitle him to relief. 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).

Applicant appears to be represented by counsel. If he is not and 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 further findings of fact as to what evidence or witnesses Applicant would have discovered had the complainant's statement to Herrington been disclosed. 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: April 1, 2009

Do not publish