## 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-84,173-02

EX P ARTE LADEREK ADA RIOUS FU LLE R, Applicant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. W08-53000-V( B) IN THE 292ND DIST RICT COURT

F ROM DALLAS 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 wa s convicted of capital murder and sentenc ed to life imprisonment. The Fifth Court of Appea ls aff irmed his conviction. Fuller v. State , No. 05-09-01099- CR (Te x . App. — Dallas, July 11, 2014) (not desig nated f or publication). App l i cant contends that his conviction was based on the materia l false testimony of
acc omplice-witness Demetr ius Ellis. Ellis has submitt ed an aff idavit in which he states that his trial testimony indicating that Applicant took part in planning the robber y and was the shooter who killed the victim during the course of the robber y was false. The State responds that Ellis’s aff idavit is not2

cre dible. The trial c ourt has not enter ed finding s of fa ct and c onclusions of law. Applicant has alleg ed fac ts that, if true, might entitle to relief
. Ex pa r t e W

ei n s t ei n , 421 S
. W
. 3d 656 (Tex. Crim. App. 2014). I n these circumstance s, additional fac ts are needed
. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court may use any means set out i n T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). I n the appropri at e ca se, the trial court may rely on its persona l
rec ollection. Id
. I f the trial court elec ts to hold a hear ing, it shall dete rmine whe ther Applica nt is indi g ent. I f Applicant is indigent a

nd wishes to be re prese nted by counsel but is not r epre sented by counsel, the trial court shall appoint an attorney to repr es en t Ap p l i cant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t and conclusions o f l aw as to whether the trial testimony of De metrius Ellis was false, a nd if so, whether there is a rea sonable likelihood that the false testimony aff

ecte d the judgme nt of the jury
. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order. A s u p p l em ental transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing 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. A ny extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.3

Filed: May

1, 2019 Do not publish