## 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-28,772-02

EX P ARTE JAMES EDWARD LONG, A ppl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1993-497-C2B IN THE 54TH DIS TRICT COURT

F ROM MC LENNAN COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant pleade d guilty to sexual assault and was sente nced to twe nty

y ear s’ imprisonment. He did not appea l his conviction. Ap p l i ca n t contends that he is actua lly innocent and that had newly available scientific evidenc e been prese nted at trial, on th e p re p o n d er ance of the evidenc e, he would not have been convicted of sexual assault. Ex parte Elizondo , 947 S.W .2d 202 (Tex. Crim. App. 1996); T E X . C O D E C R I M . P R O C . art. 11.073. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Ex parte Patterson , 9932

S.W .2d 114, 115 (Tex. Crim. App. 1999). In these circ umstances, additional fac ts are neede d. As

we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate fo ru m for finding s of fac t. The trial court shall hold a live evidentiar y hear ing. Applicant appea

rs to be repr esente d by counsel. I f he is not and the trial court elec ts to hold a hearing , it shall determine whe ther Applica nt is indi g ent. I f Appli cant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to r epre sent him at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. After holding an evid entiary hear ing, the trial court shall make finding s of fac t and conclusions of law as to whether (1) Applicant’s claims are barr ed by Article 11.07, § 4 of the Code of Criminal Procedur e; (2) the evidenc e Applicant relies on for his actua l innocenc e claim is newly discovere d or newly available ; (3) Applicant has established by clea r and convincing evidenc e that 1

no rea sonable juror would have convicted him of sexual assault in light of new ev i d en ce ; (4 ) for purposes of Article 11.073, the DNA evidenc e in Applicant’s case was “not available at the time of [hi s] t rial bec ause the evidenc e was not asce rtainable throug h the exercise of rea sonable dilig ence by [hi m] befor e the date of or during [hi s] trial”; (5) the DNA evidenc e would be admissible under 2 the T ex as Rules of Evidence at a trial held on the date this application was filed; and (6) had the DNA evidenc e been prese nted at trial, on the preponde ranc e of the evidenc e, Applicant would not have been convicted. The trial c ourt shall also make a ny other finding s of fa ct and c onclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claims for habea s corpus

See E x parte Brown , 205 S.W .3d 538, 545 (Tex. Crim. App. 2006) (“Not only must the 1 habea s applicant make a truly persua sive showing of innoce nce, he must also prove that the evidenc e he r elies upon is ‘new ly discovere d’ or ‘ newly

available .’”)

. T E X . C O D E C R I M . P R O C . art. 11.073(b) (1)( A). 23

relief

. This application will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A supplem en t al t ra n s cript containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwar ded to this Court wit hin 120 day s of the date of this order. Any extensions of t ime shall be obtained f

rom this Court. Filed: Apr il 13, 2016 Do not publish