Powell, George Robert Iii

• Court: Court of Criminal Appeals of Texas
• Decided: October 10, 2018
• Docket: WR-80,713-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-80,713-02

EX PARTE GEORGE ROBERT POWELL, III, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. FR 63436-B IN THE 27TH DISTRICT COURT FROM BELL COUNTY

Per curiam. NEWELL, J., not participating.

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 twenty-eight years’ imprisonment. The Third Court of Appeals affirmed

his conviction. Powell v. State, No. 03-09-00730-CR (Tex. App. — Austin 2011) (not designated

for publication).

Applicant contends that he has newly-available evidence of actual innocence, that his

conviction was obtained through the use of perjured testimony and false evidence, that he received

ineffective assistance of trial counsel, and that he was denied due process by the State’s failure to 2

disclose favorable and impeachment evidence to the defense. The trial court conducted extensive

habeas hearings in this matter, but did not enter findings of fact and conclusions of law before the

habeas record was forwarded to this Court on July 2, 2018.

On July 24, 2018, Applicant filed a “Motion to Supplement Writ Record” in this Court, in

which he alleges that various memoranda, proposed findings of fact, and other motions were not

included in the habeas record, although they had allegedly been filed in the district court before the

habeas record was forwarded to this Court.

Applicant has alleged facts that, if true, might entitle him 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 shall order

the Bell County District Clerk to immediately forward any documents that were not included in the

habeas record that was previously forwarded to this Court, whether they were filed before or after

that habeas record was sent to this Court. .

The trial court shall make findings of fact and conclusions of law addressing the merits of

Applicant’s habeas claims, including whether Applicant has presented newly-discovered or newly-

available evidence of actual innocence, whether his conviction was obtained by the use of false

evidence or perjured testimony, whether the State failed to disclose material impeachment evidence

to the defense, whether the performance of Applicant’s trial counsel was deficient and, if so, whether

counsel’s deficient performance prejudiced Applicant. 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 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: October 10, 2018 Do not publish