Gonzales, Alejandro Farias

• Court: Court of Criminal Appeals of Texas
• Decided: July 24, 2019
• Docket: WR-77,198-07
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-77,198-07

EX PARTE ALEJANDRO FARIAS GONZALES, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1152889-F TH IN THE 248 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 sexual assault of a child and sentenced to forty years’ imprisonment. The First Court

of Appeals affirmed the conviction. Gonzales v. State, No. 01-08-00173-CR (Tex.

App.—Houston [1st] July 16, 2009).

Applicant has filed five prior 11.07 applications and is therefore subject to a bar on any

subsequent applications. TEX . CRIM . PRO . Art. 11.07 § 4. However, he contends, among other

things, that he is actually innocent based on a new affidavit signed by the complainant. We -2-

believe that in alleged 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 the complainant

shall be called to testify. Notice of the hearing and an opportunity to testify shall be given to

those persons who participated in the trial or the investigation.

The trial court shall make findings as to the credibility of the complaining witness’

affidavit and testimony at the habeas hearing. The court shall make further findings of fact

regarding the circumstances surrounding the complainant’s new statement, including the delay

between the trial and the affidavit. The trial court shall make findings as to whether Applicant

could have presented the information contained in the complainant’s affidavit prior to his

previous 11.07 applications. The trial court shall specifically weigh the evidence of Applicant’s

guilt against the new evidence of innocence. The trial court shall enter findings of fact as to the

credibility of each witness and as to whether Applicant is entitled to relief.

It does not appear that Applicant is represented by habeas counsel. The trial court, within

30 days of the date of this order, 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 evidentiary hearing. TEX . CODE CRIM . PROC. art. 26.04.

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

the transcription of the court reporter’s notes from the live evidentiary hearing and a copy of the

exhibits admitted, along with the trial court’s findings of fact and conclusions of law and a copy

of the trial record, including the clerk’s record and a transcription of the reporter’s record of the -3-

trial, 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.

Delivered: July 24, 2019

Do not publish