## 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-91,755-01

EX P ARTE LOUIE ROLAND G ARCIA, A ppl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2017CR12158-W1 IN THE 226TH DIS TRICT COURT

F ROM BEXAR COUNTY

Per curiam . Y E A R Y , J., fi led a concurring opin ion. O R D E R Applicant pleade d g uilty to possession of a controlled substance and was sentenc ed to eig ht y ear s’ imprisonment. He did not appea l his conviction. Applicant filed this application for a writ of habeas corpus in the county of convic tion, and the district cler k forwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant conte nds, among other thing s, that he is ac tually innocent. The trial court made finding s of fac t, conclude d that Applicant had established that he is actua lly innocent, and

rec ommended that we g rant him a new trial. We believe tha t the rec ord is not adequa te to resolve whether Applicant is actua lly innocent. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). I f the trial court elec ts to develop the rec ord, it may use2

any means set out in Article 11.07, § 3(d). Applicant appea rs to be repr esente d by counsel. I f he is not and the trial court holds a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or reta ined, the trial court sha ll imm ediately notify this Court of counsel’s name

. The trial court shall make further finding s of fac t and deter mine whether Applicant posse s s ed quantities of methamphetamine not f ound in the bathroom ar ea of the house whe re, he and his codefe ndant maintain, the confide ntial informant planted drug s. The trial court shall then deter mine 1 whether Applicant committed a lesser- included offe nse of the char g es set out in the indictment and whether he has established that he is actually innocent. See State v . W ilson , 324 S.W .3d 595, 598 (Tex. Crim. App. 2010) (“We hold that the term ‘ac tual innocenc e’ shall apply , in Texas state case s, only in circ umstances in which an acc used did not, in fac t, commit the char g ed offe nse or any of the lesser- included offe nses.”)

. The trial court may make any other finding s and conclusions that it deems a ppropriate in response to Applica nt’s claims. The trial court shall make findings of fac t and co n clusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Acc ording to the rec ord, a la rg e bundle wr apped in tape containing 1,102 g rams of 1 methamphetamine w as found be hind a loose boar d in the bathroom ar ea.3

Filed: Nove mber 18, 2020 Do not publish