Digby, Bruce

• Court: Court of Criminal Appeals of Texas
• Decided: February 3, 2016
• Docket: WR-63,863-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-63,863-03

EX PARTE BRUCE DIGBY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 7493 IN THE 1-A DISTRICT COURT FROM TYLER 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 sexual assault

and sentenced to five years’ imprisonment. He did not appeal his conviction.

Applicant contends, among other things, that he is actually innocent.

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 Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App.

1999). 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. 2

The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).

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 and conclusions of law as to whether the

complainant recanted her allegations in sworn testimony at a hearing before the Board of Pardons

and Paroles; if so, whether her recantation is credible and newly available or discovered evidence,

Ex parte Brown, 205 S.W.3d 538, 545–46 (Tex. Crim. App. 2006); and if so, whether Applicant has

established by clear and convincing evidence that no reasonable juror would have convicted him in

light of the complainant’s recantation. 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 3, 2016 Do not publish