             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                            NO. 70,204-03


                      EX PARTE JUAN MELECIO ESPARZA, Applicant


                  ON APPLICATION FOR WRIT OF HABEAS CORPUS
                           CAUSE NO. F-2005-2101-C WHC 3
               IN THE 211TH DISTRICT COURT FROM DENTON 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 murder and

sentenced to seventy-five years’ imprisonment. The Second Court of Appeals affirmed his

conviction in Esparza v. State, No. 02-08-00326-CR (Tex. App.—Fort Worth, Oct. 1, 2009)(not

designated for publication).

        In the present subsequent application, Applicant raises multiple grounds for challenging his

conviction. This application, however, present a more serious question. Applicant alleges that he

is innocent and that he has newly discovered evidence to support his ineffective assistance of counsel
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claims raised in his prior writ application. In support of his allegations, Applicant submitted an

affidavit, purporting to be from one of the victim’s relatives, in which she claims that the gun

belonged to the victim, that Applicant and the victim did not have a rocky relationship, and that the

victim was attempting to commit suicide and, during a struggle over the gun, Applicant accidentally

shot the victim in the head. It is unclear from the face of this document if it is accurate and reliable

or improperly presented to this Court by Applicant.

        The writ of habeas corpus is not to be lightly or easily abused. Sanders v. U.S., 373 U.S. 1

(1963); Ex parte Carr, 511 S.W.2d 523 (Tex. Crim. App. 1977). As we held in Ex parte Rodriguez,

334 S.W.2d 294, 294 (Tex. Crim. App. 1997), 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 findings of fact as to whether the affidavit, purportedly signed by

Christina Hernandez on September 25, 2017, and submitted by Applicant, is accurate, correct, and

authored by the person listed in the document, and whether the document was notarized by said

Notary Public. If the court finds that Ms. Hernandez did execute the affidavit, it shall enter findings

of fact as to the credibility of the affiant and specific findings as to whether Applicant is entitled to

relief. 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
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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: July 25, 2018
Do not publish
