## 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-90,447-01

EX P ARTE JAMAK

A RAY C OTTI NG HAM, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 744984-A IN THE 176 DISTRICT COURT T H F ROM HARRIS COUNTY

Per curiam . K

E L L E R , P .J., fi led a concurring opin ion in wh ich Y E A R Y and KE E L , J.J., joined. R I C H A R D S O N , J., fi led a dis senting opi nion in w hich N E W E L L , W A L K E R , and S L A U G H T E R , J.J., joined. N E W E L L , J., fi led a dis senting opi nion in w hich R I C H A R D S O N and W A L K E R , J.J., joined. O R D E R Applicant was convicted of ag g ravated robber y and sentenc ed to thirty y ear s’ imprisonment. The Four teenth Court of Appea ls aff irmed his c onviction. Cotti ngham v. State , No. 14-97-00697- CR (Tex. App.

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H o u s ton [14 Dist.] Fe b. 18, 1997) (not desig nated for publication). Applicant filed

t h this application for a writ of habea s corpus in the county of conviction, and the dis t ri ct 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 contends that he is actua lly innocent and that trial counsel rende red i neff ective assistance of counsel at both the g uilt and punishment p h as es of trial. The trial court, with the2

ag ree ment of the parties, rec ommended g ranting relief on an ineffe ctive assistance of counsel claim (Ground 2.1) and did not make f indings on the othe r cla ims. Even when the State and the trial court ag ree that relief is war rante d, the rec ord may sometimes be i n s u ff

i cient and require a remand for further development. In these circumstance s, 1 additional fac ts are neede d. 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). The trial court shall make supplemental finding s of fac t. In developingthe re cord, the trial court may use any means set out in Article 11.07, § 3(d). I t appea rs that Applicant is repr esente d by counsel. I f the trial court elec ts to hold a hear ing, it shall deter

mine if Applicant is repr esente d by counsel, and if not, whether Applicant is indige nt. I f Applicant i s i ndige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repre sent Applicant 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 supplemental finding s of fac t and co n clusions of law. The trial court’s finding s shall substantively addre ss Daniel Br iseno’s aff idavit, which casts doubt on Marty Dura n’s exculpatory statement and which was err oneously cre dited to a “prison g uard.” The court 2 shall make specific finding s addr essing Br iseno’s aff idavit’s cre dibilit y and specify what aff ect it has

on the other finding s of fac t. The court shall also obtain sworn testimony from the victim, live or by aff idavit, to deter

mine whether he knew Kenne th Hadnot (aka “Pig” ) and whether he would still be

cer tain of his identification of Applicant in light of the fing erpr int evidenc e and the statements made by Dura n and Hadnot. The trial court shall also obtain sworn testimony from Dura n and Hadnot so the cre dibilit y of their statements made to ha beas counsel may be assessed. Dura n should be g iven Ex parte Turner , 394 S.W .3d 513, 513–14 (Tex. Crim. App. 2013). 1 Br iseno appe ars to be a

criminal investig ator with TDCJ’s Office of Inspector G ener al. 23

the opportunity to explain o r d en y t h e s tatements contained in Br iseno’s aff idavit. The trial court shall then assess this infor mation along with the OI G aff idavit a nd deter mine whether it a ffe cts its finding s, conclusions, and ultimate rec ommendation. The trial court may mak e an y additional supplemental finding s it deems nece ssary in response to Applica

nt’s claims. The trial court shall make fi n d ings of fac t and conclusions 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 fr om 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.

Filed: Oc tober 7, 2020 Publis h