Swim, Royce Gene

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,779-01
EX PARTE ROYCE GENE SWIM, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR15428-A IN THE 271ST DISTRICT COURT
FROM WISE 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 sexual
assault of a child and sentenced to thirty-five years’ imprisonment. He did not appeal his conviction.
Applicant contends that he is actually innocent. Specifically, the Applicant has included a
sworn affidavit from the complainant recanting her accusations in this case. Applicant has alleged
facts that, if true, might entitle him to relief. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App.
1996); Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002). We believe that in recantation
cases such as this one, before we make the important decision of whether Applicant is entitled to
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relief, the record should be more fully developed. The trial court shall therefore conduct a live
evidentiary hearing on the matter at which the complainant shall be called to testify. Notice of the
hearing and an opportunity to testify shall be given to those persons who participated in the trial or
the investigation.
It appears that Applicant is not represented by habeas counsel. The trial court, within 30 days
of the date of this order, 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 evidentiary hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall make findings as to the credibility of the complaining witness’
recantation. The court shall make further findings of fact regarding the circumstances surrounding
the complainant’s recantation, including the delay between Applicant’s plea and the recantation.
The trial court shall make findings as to whether Applicant could have presented the information
contained in the recanting witness’ affidavit prior to his guilty plea. The trial court shall specifically
weigh the evidence of Applicant’s guilt, including all of the testimony at trial, against the new
evidence of innocence. See Ex parte Tuley, 109 S.W.3d 388, 393 (Tex. Crim. App. 2002). The trial
court shall enter findings of fact as to the credibility of each witness and as to whether Applicant is
entitled to 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
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be obtained from this Court.
Filed: September 17, 2014
Do not publish