Wimberly, Christopher Eugene

• Court: Court of Criminal Appeals of Texas
• Decided: March 4, 2015
• Docket: WR-64,017-05
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-64,017-05

EX PARTE CHRISTOPHER E. WIMBERLY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 54705-E TH IN THE 27 DISTRICT COURT FROM BELL 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 robbery and sentenced to fifty years’ imprisonment. The Third Court of Appeals

affirmed the conviction. Wimberly v. State, No. 03-03-00726-CR (Tex. App.—Austin Oct. 13,

2005)(not designated for publication).

Applicant contends that he is actually innocent. He bases his claim on the confession of

another person. We believe that in 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 -2-

court shall therefore conduct a live evidentiary hearing on the matter at which, at a minimum, the

confessing person shall be called to testify.

It appears that Applicant is not 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.

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

including his confession. The court shall make further findings of fact regarding the

circumstances surrounding the confession. The trial court shall make findings as to whether

Applicant could have presented the information contained in the confessor’s affidavit prior to the

date Applicant filed his prior habeas applications. The trial court shall specifically weigh the

evidence of Applicant’s guilt, including all of the testimony at trial, against the new evidence of

innocence. See Ex parte Tuley, 109 S.W.3d 388, 393 (Tex. Crim. App. 2002). The trial court

shall enter findings of fact as to the credibility of each witness and as to whether Applicant is

entitled to 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

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

trial, 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. -3-

Delivered: March 4, 2015 Do not publish