             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-83,455-01


                      EX PARTE JAMES WESLEY DUEITT, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
            CAUSE NO. 07-03-02301-CR(1) IN THE 359TH DISTRICT COURT
                         FROM MONTGOMERY COUNTY


        Per curiam. HERVEY , J., filed a dissenting opinion in which KELLER , P.J., and
        KEASLER , J., joined.


                                              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 pleaded guilty to three counts of

possession of a controlled substance and was sentenced to eight years’ imprisonment on each count.

He did not appeal his convictions.

        In a single ground, Applicant contends that his due process rights were violated because

Jonathan Salvador, a former laboratory technician who engaged in misconduct and falsified test

results, analyzed the controlled substances in his cases. The trial court made findings of fact and
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conclusions of law and recommended that we deny relief. We believe that the record is not sufficient

to resolve Applicant’s claim.

       Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Coty, 418

S.W.3d 597, 605–06 (Tex. Crim. App. 2014); Ex parte Barnaby, 475 S.W.3d 316, 327 (Tex. Crim.

App. 2015); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 Applicant 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 the

controlled substances in Applicant’s cases are available for retesting. 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 shall

be obtained from this Court.



Filed: May 25, 2016
Do not publish
