EX PARTE HUMBERTO URIBE (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-63,222-07 & -08

EX PARTE HUMBERTO URIBE, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 866472 & 889123 IN THE 262ND DISTRICT COURT

FROM HARRIS 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 these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of aggravated sexual assault and sentenced to imprisonment for seventy-five years and one day on each count. The Fourteenth Court of Appeals affirmed his convictions. Uribe v. State, Nos. 14-02-00097-CR & 14-02-00098-CR (Tex. App.-Houston [14th Dist.], pet. ref'd).

Applicant contends, among other things, that he is actually innocent based on a newly available or discovered affidavit from Viridiana Uribe LaFleur. Relying on this Court's decision in Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006), the trial court concluded that this affidavit is not newly discovered evidence and recommended that we either deny or dismiss this application. We believe that the record should be further developed.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996). 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 hold a live evidentiary hearing.

If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04.

After holding the hearing, the trial court shall make further findings of fact and conclusions of law as to: (1) whether the factual basis of Applicant's actual innocence claim was ascertainable through the exercise of reasonable diligence on the date the -03 and -04 applications were filed in the trial court (in making this finding, the trial court shall specifically determine when the information in Viridiana's affidavit became available to Applicant); (2) whether Viridiana's affidavit is credible; and (3) whether Applicant has established that he is actually innocent. 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 claim for habeas corpus relief.

These applications 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: April 6, 2011

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