Cape, John Gabriel

• Court: Court of Criminal Appeals of Texas
• Decided: November 18, 2020
• Docket: WR-50,358-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-50,358-02

EX PARTE JOHN GABRIEL CAPE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2017CR12157-W1 IN THE 226TH DISTRICT COURT FROM BEXAR COUNTY

Per curiam. YEARY , J., filed a concurring opinion.

ORDER

Applicant pleaded no contest to possession of a controlled substance and was sentenced to

ten years’ imprisonment. He did not appeal his conviction. Applicant filed this application for a writ

of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court.1 See

TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends, among other things, that he is actually innocent. The trial court made

findings of fact, concluded that Applicant had established that he is actually innocent, and

recommended that we grant him a new trial. We believe that the record is not adequate to resolve

1 The application we received was not, however, properly verified. 2

whether Applicant is actually innocent. The trial court is the appropriate forum for findings of fact.

TEX . CODE CRIM . PROC. art. 11.07, § 3(d). If the trial court elects to develop the record, it may use

any means set out in Article 11.07, § 3(d). Applicant appears to be represented by counsel. If he is

not and the trial court holds a hearing, it shall determine whether Applicant is indigent. If Applicant

is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent

him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the

trial court shall immediately notify this Court of counsel’s name.

The trial court shall make further findings of fact and determine whether Applicant possessed

quantities of methamphetamine not found in the bathroom area of the house where, he and his co-

defendant maintain, the confidential informant planted drugs.2 The trial court shall then determine

whether Applicant committed a lesser-included offense of the charges set out in the indictment and

whether he has established that he is actually innocent. See State v. Wilson, 324 S.W.3d 595, 598

(Tex. Crim. App. 2010) (“We hold that the term ‘actual innocence’ shall apply, in Texas state cases,

only in circumstances in which an accused did not, in fact, commit the charged offense or any of the

lesser-included offenses.”). The trial court may make any other findings and conclusions that it

deems appropriate in response to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

2 According to the record, a large bundle wrapped in tape containing 1,102 grams of methamphetamine was found behind a loose board in the bathroom area. 3

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: November 18, 2020 Do not publish