Gaston, Reginald Bernard

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 2022
• Docket: WR-94,138-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-94,138-01

EX PARTE REGINALD BERNARD GASTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 895072-A IN THE 208TH DISTRICT COURT FROM HARRIS COUNTY

Per curiam. NEWELL, J., concurred.

ORDER

Applicant was convicted of aggravated robbery and sentenced to twenty-six years’

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

00742-CR (Tex. App.—Houston [1st] Jun. 19, 2003) (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.

This application was file-stamped in Harris County on July 28, 2010. An order designating

issues was signed by the trial judge on August 16, 2010. This application was not received by this

Court until September 8, 2022. There is no indication in the record of any action by the trial court

after the order designating issues was signed. Nor is there any indication as to why this application 2

was pending in Harris County for so long without any action by the clerk or the trial court.

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

affidavit from his co-defendant stating that Applicant’s only role in the offense was trying to stop

it from happening. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte

Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). Accordingly, the record should be developed.

The trial court is the appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, §

3(d).

As a preliminary matter, the trial court shall make findings of fact as to why no action was

taken by the trial court or the clerk between the entry of the order designating issues and the

forwarding of the application to this Court. The trial court shall obtain a response from Applicant

as to whether Applicant still wants to pursue this application, and shall include that response in the

supplemental record. If the trial court is unable to obtain such a response from Applicant, the trial

court shall detail the efforts that were made to obtain a response from Applicant. The trial court shall

then return the application to this Court.

If Applicant indicates that he does want to pursue this application, the trial court shall order

trial counsel to respond to Applicant’s claim. In developing the record, the trial court may use any

means set out in Article 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 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 findings of fact and conclusions of law as to whether Applicant 3

is actually innocent of aggravated robbery. The trial court shall make specific findings as to the

credibility of the statements made in the affidavit by Applicant’s co-defendant Anthony Arceneaux.

The trial court may make any other findings and conclusions that it deems appropriate in response

to Applicant’s claim.

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

by the trial court and obtained from this Court.

Filed: December 07, 2022 Do not publish