EX PARTE CLIFTON DEWAYNE HARVIN (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-72,328-01

EX PARTE CLIFTON DEWAYNE HARVIN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 95-08-0076M-CR IN THE 97TH DISTRICT COURT

FROM MONTAGUE 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated sexual assault and sentenced to sixty years' imprisonment. The Second Court of Appeals affirmed his conviction. Harvin v. State, No. 02-04-00294-CR (Tex. App.-Fort Worth 2005, no pet.).

Applicant contends, among other things, that he is actually innocent, that trial and appellate counsel were ineffective, and that his no contest plea was involuntary. On November 4, 2009, and June 30, 2010, we remanded this application for findings of fact and conclusions of law. On the second remand, the trial court held a live evidentiary hearing and made findings of fact and determined that Applicant was denied his right to file a pro se petition for discretionary review. We believe that the record is not adequate to resolve Applicant's claims.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); 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.

Applicant appears to be represented by counsel. If he is not and the trial court elects to hold a second evidentiary hearing, the trial court shall determine whether Applicant is indigent. If he 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.

The trial court shall make further findings of fact and conclusions of law as to whether: (1) the complainant's recantations are credible; (2) her recantations are newly available or discovered evidence, see Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006); and (3) Applicant has established that he is actually innocent. In making these findings and conclusions, the trial court shall consider the affidavit Cynthia Harvin signed in December 2010. The trial court shall also make findings as to whether the transcript of the grand jury testimony was disclosed to Applicant before he pleaded no contest. 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 claims for habeas corpus 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. 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: June 8, 2011

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