EX PARTE DAVID ERON BOUKNIGHT (other)

OF TEXAS

NO. WR-74,456-02

EX PARTE DAVID ERON BOUKNIGHT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 06-0511X IN THE 71ST JUDICIAL DISTRICT COURT

FROM HARRISON 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to two counts of indecency with a child and was sentenced to ten years imprisonment. He did not appeal his conviction.

Applicant contends that he was convicted on the basis of an unconstitutional statute, that he was denied the right to counsel when he made a statement to authorities, that he is actually innocent, that the prosecution presented perjured testimony, and that his trial counsel rendered ineffective assistance.

The trial judge presiding over this habeas proceeding was Applicant s defense counsel at trial. Although the trial court has not entered findings of fact and conclusions of law, and has made no recommendation as to the disposition of this case, the trial judge is constitutionally disqualified from presiding over this habeas proceeding. Article V, Sec. 11 of the State Constitution reads in part as follows: No judge shall sit in any case wherein . . . he shall have been counsel in the case. We therefore remand this case, so that the presiding judge of the administrative judicial district may assign a different judge to preside over this matter. Tex. Code Crim. Proc. art. 30.02.

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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: January 26, 2011

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