French, Nazir

• Court: Court of Criminal Appeals of Texas
• Decided: January 13, 2021
• Docket: WR-78,621-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-78,621-03

EX PARTE NAZIR FRENCH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 889956-B IN THE 262ND DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated sexual assault and sentenced to forty-five years’

imprisonment. The First Court of Appeals affirmed his conviction. French v. State, No. 01-02-

00775-CR (Tex. App.—Houston [1st Dist.] Apr. 1, 2004) (not designated for publication). Applicant

filed this application for a writ of habeas corpus in the county of conviction, and the district clerk

forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant raises actual innocence and false evidence claims based on the complainant’s

recanting affidavit. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte

Elizondo, 947 S.W.2d 202, 206 (Tex. Crim. App. 1996); Ex parte Weinstein, 421 S.W.3d 656, 665

(Tex. Crim. App. 2014). Accordingly, the record should be developed. The trial court is the 2

appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). We believe that

in recantation cases such as this one, before we make the important decision of whether Applicant

is entitled to relief, the record should be more fully developed. The trial court shall therefore conduct

a live evidentiary hearing on the matter at which, at a minimum, the complainant shall be called to

testify. It appears that Applicant is represented by counsel. Before the trial court holds a hearing, it

shall determine whether Applicant is represented by counsel. If he is not, the trial court shall

determine whether he is indigent. If Applicant is indigent, not represented by counsel, 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. If counsel is appointed or retained, the trial court shall

immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law addressing whether the

complainant’s affidavit presents a previously unavailable factual basis for Applicant’s claims. TEX .

CODE CRIM . PROC. art. 11.07 § 4. The trial court shall also make specific findings addressing the

credibility of the complainant’s affidavit and testimony. The trial court shall also make specific

findings addressing the merits of Applicant’s actual innocence and false evidence grounds for relief.

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

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested 3

by the trial court and obtained from this Court.

Filed: January 13, 2021 Do not publish