EX PARTE DOMINGO CALDERON (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-66,458-01

EX PARTE DOMINGO CALDERON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 04-11-0244-CRA IN THE 218TH DISTRICT COURT

FROM ATASCOSA 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 indecency with a child by exposure and sentenced to ten years' imprisonment. He did not appeal his conviction.

Applicant contends, among other things, that he is actually innocent based on a 2006 recantation from the complainant and that the State failed to disclose that the complainant had recanted as early as 2005. On January 31, 2007, we remanded this application and directed the trial court to enter findings of fact and conclusions of law. After holding an evidentiary hearing, the trial court concluded that the complainant's 2005 recantation was disclosed to Applicant. The trial court found, however, that the complainant's 2006 recantation constituted newly discovered evidence and concluded that Applicant was actually innocent. The trial court recommended that we grant relief.

On June 27, 2007, we remanded this application for further findings of fact and conclusions of law. We directed the trial court to determine whether there were facts in the complainant's 2006 recantation that were not previously available to or discoverable by Applicant. See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006). Specifically, we directed the trial court to determine what, if any, material facts set out in the complainant's 2006 recantation were not included in her 2005 recantation.

On remand, the trial court found, among other things, that when Applicant pleaded no contest, he had no knowledge of the complainant's 2005 recantation; and that because the complainant's 2006 recantation had not been presented to the trial court, it constituted newly discovered evidence. The trial court again recommended that we grant relief. We believe that the trial court should make further findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

Applicant appears to be represented by counsel. If not and the trial court elects to hold a second hearing, it 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall determine whether the complainant's 2005 recantation was in fact disclosed to Applicant. In its original findings, the trial court determined that the recantation was disclosed to Applicant, but in its subsequent findings, it determined that Applicant had no knowledge of the recantation. We believe these findings should be clarified. If the trial court finds that the 2005 recantation was not disclosed, it shall determine whether the State violated Brady v. Maryland, 373 U.S. 83 (1963). If the trial court finds that the 2005 recantation was disclosed, it shall make further findings on what, if any, material facts set out in the complainant's 2006 recantation were not included in her 2005 recantation. The trial court shall then make further findings of fact and conclusions of law as to whether Applicant has established that he is actually innocent. The trial court shall 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: February 27, 2008

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