             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-35,508-03


                      EX PARTE JAMES WAYNE PITTS, JR., Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 1993-511-C2C IN THE 54TH DISTRICT COURT
                            FROM MCLENNAN 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 pleaded guilty to sexual assault and

was sentenced to twenty years’ imprisonment. He did not appeal his conviction.

        Applicant contends that he is actually innocent and that had newly available scientific

evidence been presented at trial, on the preponderance of the evidence, he would not have been

convicted of sexual assault. Ex parte Elizondo, 947 S.W.2d 202 (Tex. Crim. App. 1996); TEX . CODE

CRIM . PROC. art. 11.073.

        Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993
                                                                                                    2

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 shall hold a live evidentiary hearing.

       Applicant appears to be represented by counsel. If he is not and 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 him at the hearing.

TEX . CODE CRIM . PROC. art. 26.04.

       After holding an evidentiary hearing, the trial court shall make findings of fact and

conclusions of law as to whether (1) Applicant’s claims are barred by Article 11.07, § 4 of the Code

of Criminal Procedure; (2) the evidence Applicant relies on for his actual innocence claim is newly

discovered or newly available;1 (3) Applicant has established by clear and convincing evidence that

no reasonable juror would have convicted him of sexual assault in light of new evidence; (4) for

purposes of Article 11.073, the DNA evidence in Applicant’s case was “not available at the time of

[his] trial because the evidence was not ascertainable through the exercise of reasonable diligence

by [him] before the date of or during [his] trial”;2 (5) the DNA evidence would be admissible under

the Texas Rules of Evidence at a trial held on the date this application was filed; and (6) had the

DNA evidence been presented at trial, on the preponderance of the evidence, Applicant would not

have been convicted. 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


       1
         See Ex parte Brown, 205 S.W.3d 538, 545 (Tex. Crim. App. 2006) (“Not only must the
habeas applicant make a truly persuasive showing of innocence, he must also prove that the
evidence he relies upon is ‘newly discovered’ or ‘newly available.’”).
       2
           TEX . CODE CRIM . PROC. art. 11.073(b)(1)(A).
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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: April 13, 2016
Do not publish
