             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-77,739-03


                   EX PARTE CEDRIC DEMICHAEL BUTLER, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
             CAUSE NO. W90-01404-T(B) IN THE 283RD DISTRICT COURT
                            FROM DALLAS 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 originally charged with

aggravated sexual assault of a child. He pleaded guilty to the lesser offense of sexual assault of a

child in exchange for two years’ deferred adjudication community supervision. His guilt was later

adjudicated, and he was sentenced to ten years’ imprisonment, but was granted “shock” probation.

His probation was eventually revoked, and he was sentenced to eight years’ imprisonment. The Fifth

Court of Appeals dismissed his appeal for want of jurisdiction. Butler v. State, No. 05-92-01177-CR

(Tex. App. — Dallas, October 29, 1996).
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       Applicant contends that his plea was involuntary because the State failed to disclose

favorable, material evidence to the defense. Brady v. Maryland, 373 U.S. 83 (U.S. 1963); Ex parte

Kimes, 872 S.W.2d 700, 702-703 (Tex. Crim. App. 1993). Applicant alleges that during an

investigation relating to a motion for post-conviction D.N.A. testing in 2012, it was discovered that

a supplemental police report had not been disclosed to the defense at the time Applicant entered his

original plea. The supplemental police report contains favorable evidence which, according to

Applicant, was material in that had it been timely disclosed, would likely have caused Applicant to

plead “not guilty” to the charges.

       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 may use any

means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d). In the appropriate case, the trial court

may rely on its personal recollection. Id.

       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 supplement the habeas record with copies of all evidence, including

police reports and statements, that was provided to the defense before Applicant’s plea was entered.

The trial court shall make findings of fact as to when and how the supplemental report dated

December 7, 1989, was first provided to Applicant. The trial court shall make findings of fact and

conclusions of law as to whether the supplemental police report constitutes favorable, material

evidence. The trial court shall make findings of fact and conclusions of law as to whether there is
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a reasonable probability that had the evidence been disclosed, the outcome of the proceedings would

have been different, in that Applicant would not have pleaded guilty to the charges. 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: September 16, 2015
Do not publish
