Gandy, Robert

• Court: Court of Criminal Appeals of Texas
• Decided: March 28, 2018
• Docket: WR-22,074-10
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-22,074-10

EX PARTE ROBERT GANDY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 532347-E IN THE 351ST DISTRICT COURT FROM HARRIS 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

robbery and sentenced to life imprisonment. The First Court of Appeals affirmed his conviction.

Gandy v. State, 835 S.W.2d 238 (Tex. App. — Houston [1st Dist.] July 23, 1992) (pet. ref’d.).

Applicant contends that he was denied due process because his conviction was based on

“junk science.” In 2009 Applicant received a notice from the Harris County District Attorney’s

Office indicating that the F.B.I. had recently notified that office that evidence and testimony from

an F.B.I. examiner presented at Applicant’s trial concerning compositional analysis of bullet lead 2

or fragments to establish links to a particular box of ammunition had been determined to be

unreliable. Applicant alleges that the testimony of the F.B.I. examiner as to comparisons between

bullets found at the scene of the offense and in Applicant’s home and car was false and misleading,

and that he is entitled to a new trial pursuant to Article 11.073 of the Texas Code of Criminal

Procedure.

Applicant has alleged facts that, if true, might entitle to relief. 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) to resolve the issues raised in this

application. In the appropriate case, the trial court may rely on its personal recollection. Id.

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 relevant

scientific evidence is currently available and was not available at the time of Applicant’s trial or at

the time of the filings of his previous habeas applications. The trial court shall make findings of fact

and conclusions of law as to whether such evidence would be admissible at a trial. The trial court

shall also make findings of fact and conclusions of law as to whether, but for the testimony of the

F.B.I. examiner, by a preponderance of the evidence Applicant would not have been convicted. 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 3

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 must

be requested by the trial court and shall be obtained from this Court.

Filed: March 28, 2018 Do not publish