             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-82,151-03


                             EX PARTE JESUS AYALA, Applicant


              ON APPLICATION FOR A WRIT OF HABEAS CORPUS
          CAUSE NO. 2003CRS000058-D4(B) IN THE 406TH DISTRICT COURT
                            FROM WEBB 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 multiple child-

sex offenses and was sentenced to imprisonment.

        Applicant contends that he is actually innocent. In support, he presents a letter purportedly

written by a doctor who examined the victim and a sworn statement purportedly made by the victim

recanting her allegations. The State contests the authenticity of both documents and presents various

arguments why the documents appear to be fabricated. There are no findings from the trial court

regarding the authenticity of the documents. Although both documents contain contact information
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for the document’s writers, the habeas record does not indicate whether these persons were contacted

to verify whether the documents purportedly made by them are authentic.

        Applicant has alleged facts that, if true, might entitle him to relief. 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 gather evidence and make findings of fact regarding whether the

documents Applicant has presented are authentic or fabricated. If the trial court determines that either

document is authentic, it shall make further findings as to whether the evidence presented in the

document(s) is newly available to Applicant. See Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App.

2006). If the trial court determines that Applicant has presented authentic, newly-available evidence,

it shall hold an evidentiary hearing on Applicant’s claim of actual innocence. See Ex parte Elizondo,

947 S.W.2d 202 (Tex. Crim. App. 1996); Ex parte Tuley, 109 S.W.3d 388 (Tex. Crim. App. 2002).

        If an evidentiary hearing is required, 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. If there

is an evidentiary hearing, the trial court shall make credibility determinations and enter findings

resolving whether, by “clear and convincing evidence ... a jury would acquit” Applicant in light of

the new evidence when that evidence is weighed against the evidence of guilt. Ex parte Elizondo,

supra; Ex parte Tuley, supra. The trial court may also make any other findings and conclusions 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
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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 requested by the trial court and shall be obtained from this Court.



Filed: November 7, 2018
Do not publish
