             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-58,179-02


                          EX PARTE FAUSTINO OVALLE, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 11-3351-1-HC IN THE 36TH DISTRICT COURT
                          FROM SAN PATRICIO 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 four counts of

aggravated assault and sentenced to thirty-five years’ imprisonment for each count. The Thirteenth

Court of Appeals affirmed his convictions. Ovalle v. State, No. 13-12-00272-CR (Tex.

App.—Corpus Christi-Edinburg Jan. 9, 2014) (not designated for publication).

        Applicant contends, among other things, that he is actually innocent, that a trial prosecutor

suppressed material impeachment evidence, that a prosecutor knowingly presented false evidence,

and that his conviction was based on false evidence. In support of his claims, he proffers affidavits
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from witnesses and his co-defendant. The State recommended that the trial court designated issues

for resolution, but the habeas record contains no findings from the trial court.

         Applicant has alleged facts that, if true, might entitle him to relief. Brady v. Maryland, 373

U.S. 83 (1964); Giglio v. United States, 405 U.S. 150 (1972); Ex parte Elizondo, 947 S.W.2d 202

(Tex. Crim. App. 1996); Ex parte Weinstein, 421 S.W.3d 656, 665 (Tex. Crim. App. 2014). 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. Before we make

the important decision of whether Applicant is entitled to relief, the record should be more fully

developed. The trial court shall therefore conduct a live evidentiary hearing on the matter at which

testimony is received addressing these claims.

         It appears that Applicant is represented by counsel. Before the trial court holds a hearing, it

shall determine if Applicant is represented by counsel, and if not, whether Applicant is indigent. If

Applicant is indigent, not represented by counsel, 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 findings of fact and conclusions of law as to whether Applicant

has proved by clear and convincing evidence that he is actually innocent of the crimes of conviction.

The trial court shall make findings of fact and conclusions of law addressing whether witnesses

provided false testimony and, if so, whether it was material. The trial court shall make findings of

fact and conclusions of law addressing Applicant’s allegations that the State withheld material

impeachment evidence and elicited false testimony. In making the findings, the trial court shall make

credibility findings. Should the Court determine that the recantations are credible, it shall make
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findings as to whether Applicant’s exposure to party liability. 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 claims 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 requested by the trial court and shall be obtained from this Court.



Filed: November 7, 2018
Do not publish
