McDowell, David Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: June 12, 2013
• Docket: WR-79,575-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-79,575-01 EX PARTE DAVID WAYNE MCDOWELL, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F-0143430-LV IN THE 292ND DISTRICT COURT

FROM DALLAS COUNTY

Per curiam.

O R D E R

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 and sentenced to fifteen years' imprisonment. The Fifth Court of Appeals affirmed his conviction. McDowell v. State, No. 05-03-00781-CR (Tex. App.--Dallas 2004, pet. ref'd).

This application was filed in Dallas County on April 9, 2013. Applicant contends that the State destroyed and failed to disclose evidence. The trial court recommended that we dismiss this application because an "A" application was previously filed in Dallas County and the trial court has not made findings of fact and conclusions of law in response to the "A" application.

We have not held that when an applicant files an amended or "B" application, it should be dismissed because an "A" application is pending in the trial court. Such a dismissal might result in a future dismissal under Article 11.07, § 4 of the Code of Criminal Procedure, if the "A" application challenged the conviction and an applicant filed a subsequent application in the trial court after we denied the "A" application.

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 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 him 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 Applicant's due process rights were violated. Brady v. Maryland, 373 U.S. 83 (1963); Arizona v. Youngblood, 488 U.S. 51 (1988). 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 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 shall be obtained from this Court.

Filed: June 12, 2013

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