Winfrey, Nicholas Blair

• Court: Court of Criminal Appeals of Texas
• Decided: September 23, 2020
• Docket: WR-91,651-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,651-01

EX PARTE NICHOLAS BLAIR WINFREY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1418021-A IN THE 182ND DISTRICT COURT FROM HARRIS COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated robbery and sentenced to forty-five years’

imprisonment. The Fourteenth Court of Appeals affirmed his conviction. Winfrey v. State, No. 14-

16-00364-CR (Tex. App. — Houston [14th Dist.] Sept. 12, 2017) (not designated for publication).

Applicant filed this application for a writ of habeas corpus in the county of conviction, and the

district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that he was denied due process because the State failed to disclose to the

defense the existence of an agreement with Applicant’s co-defendant Marquisha Lewis in exchange

for her testimony against Applicant, and because the State presented and failed to correct Lewis’s

false testimony at trial indicating that no such agreement existed. Applicant has alleged facts that, 2

if true, might entitle to relief. Giglio v. United States, 405 U.S. 150, 155 (1972); Napue v. Illinois,

360 U.S. 264, 269-70 (1959). Accordingly, the record should be developed. The trial court is the

appropriate forum for findings of fact. TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court

shall order the trial prosecutor and defense counsel to respond to Applicant’s claims. In developing

the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects

to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and

wants to be represented by counsel, the trial court shall appoint counsel to represent at the hearing.

See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial court shall

immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law as to whether there existed

any agreement between the State and Marquisha Lewis in exchange for her testimony at Applicant’s

trial, and if so, whether the existence of such an agreement was disclosed to the defense prior to trial.

If any such agreement did exist, the trial court shall make findings of fact and conclusions of law as

to whether Lewis testified falsely at trial that she had no agreement or expectation of favorable

treatment in exchange for her testimony, and whether the State sought to correct any such testimony.

The trial court may make any other findings and conclusions that it deems appropriate in response

to Applicant’s claims.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested 3

by the trial court and obtained from this Court.

Filed: September 23, 2020 Do not publish