             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-65,308-03


                        EX PARTE BLAKE ALLEN THAIN, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 0879844-C IN THE 185TH DISTRICT COURT
                              FROM HARRIS COUNTY


        Per curiam.

                                              ORDER

        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 murder and

sentenced to sixty-five years’ imprisonment. The First Court of Appeals affirmed his conviction.

Thain v. State, No. 01-02-00584-CR (Tex. App.—Houston [1st Dist.] June 19, 2003) (not designated

for publication).

        This is a subsequent application. See TEX . CODE CRIM . PROC. art. 11.07, § 4. Applicant

contends, among other things, that the State failed to disclose before trial the results of an atomic

absorption spectrophotometry test performed on Applicant. The trial court made findings of fact and
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conclusions of law and recommended that we dismiss this application.

       We believe that the record should be further developed. Applicant has alleged facts that, if

true, might entitle him to relief. Brady v. Maryland, 373 U.S. 83 (1963). 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 may use any

means set out in TEX . CODE CRIM . PROC. art. 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 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 State failed to disclose before trial the results of an atomic absorption spectrophotometry test

performed on Applicant; (2) Applicant could have discovered the factual basis of his claim with the

exercise of reasonable diligence before he filed his previous application in this cause, see TEX . CODE

CRIM . PROC. art. 11.07, § 4(c); and (3) the results of the atomic absorption spectrophotometry test

are material to Applicant’s guilt or punishment. 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.

       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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must be
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requested by the trial court and shall be obtained from this Court.



Filed: March 27, 2019
Do not publish
