               IN THE COURT OF CRIMINAL APPEALS
                           OF TEXAS
                                                NO. WR-59,024-04


                            EX PARTE ROBERTO CASTANON, Applicant

                   ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                               CAUSE NO. 97-CR-0827-B
               IN THE 138TH DISTRICT COURT FROM CAMERON 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 aggravated

robbery and was sentenced to imprisonment.1

         Applicant raises several claims in his habeas application. In support of his claim of actual

innocence, Applicant provides an affidavit purportedly made by Hector Garza. Garza had testified

at Applicant’s trial that Applicant had used a handgun to rob the complainant. Garza now allegedly

recants his trial testimony in part. He maintains that Applicant robbed the complainant, but he states

that his and the complainant’s testimonies that a handgun was used was false and that he and the


         1
          The indictment alleged that Applicant “in the course of committing theft and with the intent to obtain and
maintain control of the property to be stolen, intentionally and knowingly threatened and placed [the complainant] in fear
of imminent bodily injury by using and exhibiting [a] deadly weapon, to wit, a handgun, which in the manner of [its] use
or intended use was capable of causing serious bodily injury.”
                                                                                                      -2-

complainant were pressured by the State to falsely testify because they had reported to police that

Applicant had used a handgun. The affidavit in the habeas record is not signed or dated. The

affidavit, however, indicates it is “page 1 of 2” (it is located at page 34 of the habeas record

forwarded to this Court), but the habeas record does not contain a second page to the affidavit.

         The trial court shall order the Cameron County District Clerk to supplement the habeas

record to this Court with a copy of the second page of the affidavit if it was filed or a statement from

the clerk indicating that no second page to the affidavit was filed. The trial court shall also make

findings of fact regarding whether the affidavit is credible and a recommendation to this Court

regarding whether Applicant’s claim that he is not guilty of using a handgun to commit the robbery

has merit. See Ex parte Weinstein, 421 S.W.3d 656 (Tex. Crim. App. 2014); Ex parte Elizondo, 947

S.W.2d 202 (Tex. Crim. App. 1996).

         To make the findings and recommendation, 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 Applicant at the hearing. TEX . CODE CRIM . PROC.

art. 26.04.

         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 the date 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, shall be forwarded to this

Court within 120 days of the date of this order. Any extensions of time shall be obtained from this

Court.

Filed: July 23, 2014
Do not publish
