             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-79,039-02


                    EX PARTE ROBERT WALTER FISCHER, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. 2004CR0216-W2 IN THE 226TH DISTRICT COURT
                            FROM BEXAR COUNTY


        Per curiam. Yeary, J., not participating.

                                              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). A jury convicted Applicant of murder and

sentenced him to 99 years in prison. The conviction was affirmed on direct appeal. Fischer v. State,

No. 04-05-00834-CR (Tex. App.—San Antonio del. Jun. 10, 2009). This Court denied Applicant’s

initial habeas application that challenged the merits of the conviction. Ex parte Fischer, No.

WR-79,039-02 (Tex. Crim. App. del. Mar. 20, 2013).

        Applicant contends in this subsequent habeas application that relevant scientific evidence

contradicts the State’s forensic ballistic evidence that was presented at trial. The claim is based on
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a new legal basis—Article 11.073 of the Code of Criminal Procedure, which became effective after

Applicant’s initial habeas application was denied. It states in pertinent part as follows:

       (a) This article applies to relevant scientific evidence that: (1) was not available to
       be offered by a convicted person at the convicted person’s trial; or (2) contradicts
       scientific evidence relied on by the state at trial.

       (b) A court may grant a convicted person relief on an application for a writ of habeas
       corpus if: (1) the convicted person files an application, in the manner provided by
       Article 11.07, 11.071, or 11.072, containing specific facts indicating that: (A)
       relevant scientific evidence is currently available and was not available at the time
       of the convicted person’s trial because the evidence was not ascertainable through the
       exercise of reasonable diligence by the convicted person before the date of or during
       the convicted person’s trial; and (B) the scientific evidence would be admissible
       under the Texas Rules of Evidence at a trial held on the date of the application; and
       (2) the court makes the findings described by Subdivisions (1)(A) and (B) and also
       finds that, had the scientific evidence been presented at trial, on the preponderance
       of the evidence the person would not have been convicted.

       The trial court finds that Applicant’s habeas evidence does not contradict the ballistic

evidence relied upon by the State at trial. After an independent review of the record, this Court

agrees. Further, Applicant fails to show that his habeas evidence regarding this claim was not

ascertainable through the exercise of reasonable diligence before trial.

       Applicant also claims, under Article 11.073, that new scientific evidence concerning cell-

phone-tower location data contradicts the cell-phone-tower location evidence presented at his trial.

According to the trial court, this habeas evidence “was unavailable to Applicant at the time of his

trial and also contradicts evidence relied upon by the State at trial.” The trial court finds that the

evidence would be admissible and that, had the jury known of the evidence, Applicant would not

have been convicted. The trial court states as follows:

       The court has considered the scientific evidence supporting Applicant’s second
       ground for relief and the evidence presented and relied upon by the State at trial. Cell
       tower technology is a continually evolving science that can often serves as the crux
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       of the State’s case. As the State’s case was primarily circumstantial, the court finds
       that the scientific evidence presented at trial regarding cell tower technology and the
       testimony that followed regarding Applicant’s approximate location at or around the
       time of the offense was vital to the outcome of the case. Thus, the court finds that
       Applicant has met his burden in proving by a preponderance of the evidence that had
       the scientific evidence supporting ground two been presented at trial, Applicant
       would not have been convicted.

       This Court remains unconvinced that the trial court’s findings on this claim are supported

by the record. 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 conduct a live evidentiary hearing regarding Applicant’s cell-phone-

tower-location-data claim.

       It appears that Applicant is represented by habeas counsel. If Applicant is not represented by

habeas counsel, the trial court 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.

       The trial court shall make additional findings of fact assessing the credibility of the witnesses

and shall make additional findings regarding whether the habeas evidence upon which Applicant

relies was ascertainable through the exercise of reasonable diligence before Applicant’s trial. The

trial court shall also make findings regarding laches. Carrio v. State, 992 S.W.2d 486 (Tex. Crim.

App. 1999); overruled in part by Ex parte Perez, 398 S.W.3d 206 (Tex. Crim. App. 2013).

       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
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be forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.



Filed: October 23, 2019
Do not publish
