Smyth, Sherry Lynn ( 2014 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-80,787-01

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EX PARTE SHERRY LYNN SMYTH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 48540 IN THE 240^TH DISTRICT COURT FROM FORT BEND 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty, was convicted of possession of a controlled substance and, after a period of deferred adjudication, was sentenced to one year imprisonment in a state jail. She did not appeal her conviction.

Applicant contends that her due process rights were violated because a forensic scientist did not follow accepted standards when analyzing evidence in her case. This application was forwarded to this Court prior to the Court's rehearing in Ex Parte Coty, WR-79,318-02 (Tex. Crim. App. Jan. 15, 2014)(published). We remand this application so that the parties can apply the principles of that opinion to the facts of Applicant's case.

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

The trial court may order depositions, interrogatories, or a hearing. It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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 first make findings of fact and conclusions of law as to whether Applicant is suffering collateral consequences from this discharged conviction. If so, the trial court shall then determine whether Applicant has established an inference of falsity as enumerated in this Court's opinion in Coty, and if so, to what extent it was material. 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: February 26, 2014

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