## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S No. WR-70,212- 03

EX P ARTE MARK

UM WOODROW P EAVEY, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 08-1604-K26A IN THE 26T H DISTRICT COURT FROM WILLIAMSON COUNTY

Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the Texas C o d e o f C ri minal 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, 82 6 ( T e x. Cr im. App. 1967). Applicant was convicted of ag g ravated perjury

as a habitual felon and was sentenc ed to thirty y ear s’ incar cer ation. The conviction was aff irmed on direc t appea l. Peav ey v . State , No. 11-10-00012- CR (Tex. App.—Eastland del. J an. 19, 2012). Be fore being convicted of the ag g ravated perjury , Applicant pled g uilty to f elony driving while int o x i ca ted in 2003 and was sentenc ed to seven y ear s in prison. Whil e on parole for the offe nse, Applica

nt was convic ted of a

nother DWIin 2006 and was se ntence d to fifty -five year s in prison. In Marc h 2008, Applicant filed a habea s application collateral ly attacking the 2003 DWI-2-

conviction. This Court denied the habea s application in September 2008. In October 2008, the State obtained an indictment alleg ing that Applicant committed ag g ravated perjury d u ri ng the habea s proce eding

. In the ag g ra v ated perjury indictment, the State alleg ed that Applicant, in his habea s application, had claimed to be actua lly innocent of the DWI when he was, in fac t, g uilty ; had claimed to be g uilty of the DWI at the guilty plea proce eding but now claimed to be innocent; and h ad claimed two breath tests indicated results below 0

. 0 1 when the breath tests results wer e 0.10 or g reater. At a non-jury trial, Applicant did not c ontest any alleg ations of falsity but argued the State had not proven that he signe d the application. Another inmate testified that he ty ped the application for Applican t af

t er discussing the case with him, and thi s other inm ate ga ve vacillating testim ony whether he signe d the application for Applicant or not. The trial court was able to compar e the signature on the application purportedly made by Applicant to a signature known to have been made by him, as well as to other signa tures of Applicant’s name that the other inm at e t es t i fi ed he had signe d on Applicant’s behalf

. The trial court found Applicant g uilty , found the h abitual enhanc ement true, and assessed a thirty -y ear sentenc e. The evidenc e of g uilt was found sufficie nt on direc t appea l, and PDR was re fused. In this habea s application attacking the ag g ravated perjury conv ic ti o n , A p p li c a nt a r g u e s , in te r alia , that he is actua lly innocent beca use he did not sign the habea s appl i ca t i o n i n question. Applicant attache s a statem en t p u rportedly signe d by the other inmate who g ave the vacillating testimony at Ap p l i cant’ s trial. This other inmate now states he is sure that he—not Applicant— signe d the application in ques t i o n , g iving a rea son, and his cer tainty differ s from his prior, vacillating , trial testimony

. The trial court enter ed an order for further fac t-finding on the matter and-3-

ap p o i n ted habea s counsel. The district cler k, howeve r, was require d to forwa rd the habea s application to this C o u rt b ef o re the fac t finding was made due to the proce dural dictates of the habea s corpus statute. See T E X . C O D E C R I M . P R O C . art. 11.07 § 3. The habea s rec ord supports the trial court’s deter mination that further fac t-finding should be made. Applicant’s habea s application is rema nded to the trial court to resolve the controve rted issues of fac t a nd to enter f

indings of fac t a

nd conclusions of law. To resolve the controve rted issues and make its findin gs an d conclusion, the trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

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

. A supplemental 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 hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwa rded to this Court within 120 day s of the date of this order

. Any extensions of time shall be obtained fr om this C ourt. Filed: August 20, 2014 Do not publish