Spencer, Ex Parte Benjamin John

• Court: Court of Criminal Appeals of Texas
• Decided: October 28, 2009
• Docket: AP-76,244
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. AP-76,244

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EX PARTE BENJAMIN JOHN SPENCER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F87-96524-UT IN THE 283RD DISTRICT COURT

FROM DALLAS COUNTY

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           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 robbery and sentenced to life imprisonment.

            Applicant contends, among other things, that he is actually innocent. We order that this application be filed and set for submission to determine whether: (1) Applicant properly raised a free-standing actual innocence claim, see Herrera v. Collins, 506 U.S. 390 (1993); (2) the evidence he relies on is newly discovered or newly available, see Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006); (3) this Court should consider advances in science and technology when determining whether evidence is newly discovered or newly available for purposes of actual innocence; and (4) Applicant has shown “by clear and convincing evidence that no reasonable juror would have convicted him in light of the new evidence.” Ex parte Elizondo, 947 S.W.2d 202, 209 (Tex. Crim. App. 1996). The parties shall brief these issues.

            It appears that Applicant is represented by counsel. If that is not correct, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. Tex. Code Crim. Proc. art. 26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental transcript containing: a confirmation that Applicant is represented by counsel; the order appointing counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this Court within 90 days of the date of this order.

Filed: October 28, 2009

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