Gomez, Francisco

• Court: Court of Criminal Appeals of Texas
• Decided: February 3, 2016
• Docket: WR-48,540-06
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-48,540-05 AND -06

EX PARTE FRANCISCO GOMEZ, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 9424768-C AND 9424768-D IN THE 208TH 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of murder and

sentenced to life imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Gomez

v. State, No. 14-95-01481-CR (Tex. App.—Houston [14th Dist.] Sept. 4, 1997) (not designated for

publication).

Applicant contends, inter alia, that the State presented false testimony to convict him. See

Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014). He provides statements allegedly made

by two of his sons, who testified at Applicant’s trial. Both of the sons’ statements indicate that some 2

trial testimony was coerced and was not true. There are no credibility determinations regarding the

statements or findings from the trial court as to whether there was false testimony that was material

to Applicant’s conviction.

Applicant has alleged facts that, if true, might entitle him to relief. 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. The trial court shall resolve the factual issues. To do so, the

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

the statements presented in the habeas application, whether there was false testimony presented at

Applicant’s trial, and, if so, whether there is a reasonable likelihood that the false testimony affected

the judgment of the jury. See Ex parte Weinstein, supra. 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 claims 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 3

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