## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-94,198-01

EX P ARTE BOBBY RAY SEWELL, Applicant

ON AP P LICATION F OR A WRIT OF HABEAS CORP US CAUSE NO. D-16-1492-CR-W1 IN THE 358TH DISTRICT COURT

F ROM ECTOR COUNTY

Per curiam . O R D E R Applicant was convicted of one count of forg ery o f a financial instrument and o n e count of tampering with a g overnmental record, and was sentenced to two y ears’ state jail probated for five y ears for the forg ery count, a n d f o u r y e ars’ imprisonment for the tampering with a g overnmental record count. The Eleventh Court of Appeals affirmed his c onviction. Sewell v. State , No. 11-19- 00342-CR (Tex

. App. — Eastland October 7, 2021) (not desig nated for publication). Applicant filed this applic a t i on f

or a writ o f habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. B e cause it does not appear that Applicant’s probation for the forg ery c ount has been revoked, this Court lacks Article 11.07 habeas jurisdiction to address any claims as to that count.2

A p p l i c ant c ontends that he has newly -available evidence o f actual innocence, and that the State unknowing ly presented false testimony at trial. Applicant has alleg ed facts that, if true, mig ht entitle him to relief. Ex parte Chabot , 300 S.W .3d 768 (Tex

. Crim. App. 2 009). According ly , the record should be d eveloped. T h e trial court is the a ppropriate forum for finding s of fact. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). The trial court may use any means set out in Article 11.07, § 3 (d). I f the trial court elects to hold a hearing , it s h a l l d e termine whether Applicant is indig ent. I f Applicant is indig ent and wants to be represented by couns e l , the trial court shall appoint counsel to represent him a t the hearing

. See T E X . C O D E C R I M . P R O C . a rt. 2 6.04. I f counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s name. The trial court shall make finding s o f f act and conclusions of law as to whether the State unknowing ly presented false testimony at trial, and if so, whether it is more likely than not that such false testimony contributed to Applicant’s conviction and punishment. The trial court shall make finding s as to w hethe r Ap p l i cant has established that no reasonable juror would h ave convicted Applicant of the offenses but for the alleg edly false testimony

. The trial court may make any other finding s and conclusions that it deems appropriate in response to Applicant’s claims. The trial cou r t s hall make finding s of fact and conclusions of law within n inety day s from the date of this order. The d istrict clerk shall then immediately forward to this Court the trial court’s finding s and conclusions and the record developed o n remand, including , among other thing s,

a ffidavits, motions, objections, proposed finding s and conclusions, o rders, and transcripts from hearing s and depositions. S ee T E X . R. A P P . P. 73.4(b)(4). Any ex tensions of time must be requested by the trial court and obtained from this Court.3

F iled: November 2, 2022 Do not publish