IN THE

TENTH COURT OF APPEALS

No. 10-10-00029-CR

EX PARTE JOSE JESUS GONZALEZ

From the 40th District Court

Ellis County, Texas

Trial Court No. 23223CR

O P I N I O N

Jose Jesus Gonzalez filed a habeas application under article 11.072 of the Code of

Criminal Procedure seeking relief from a deferred adjudication order for indecency 

with a child. The court denied Gonzalez’s application without a hearing. Gonzalez 

contends in his sole issue that the court erred by resolving controverted facts against 

him without first conducting an evidentiary hearing. We will affirm.

Article 11.072

Article 11.072, section 6 provides in pertinent part:

(a) Not later than the 60th day after the day on which the state’s answer is 

filed, the trial court shall enter a written order granting or denying the 

relief sought in the application.
Ex parte Gonzalez Page 2

(b) In making its determination, the court may order affidavits, 

depositions, interrogatories, or a hearing, and may rely on the court’s 

personal recollection.

(c) If a hearing is ordered, the hearing may not be held before the eighth 

day after the day on which the applicant and the state are provided notice 

of the hearing.

TEX. CODE CRIM. PROC. ANN. art. 11.072, § 6(a)-(c) (Vernon 2005).1

Based on the language of subsection (b) alone, the Fort Worth Court of Appeals 

has concluded that no evidentiary hearing is required under article 11.072. Ex parte 

Cummins, 169 S.W.3d 752, 757 (Tex. App.—Fort Worth 2005, no pet.). We agree with 

that conclusion, but we find further support for it in cases construing a similar 

provision in article 11.07.2

Article 11.07, section 3(d) provides in pertinent part, “To resolve [controverted 

fact] issues the court may order affidavits, depositions, interrogatories, additional 

forensic testing, and hearings, as well as using personal recollection.” TEX. CODE CRIM.

PROC. ANN. art. 11.07, § 3(d) (Vernon Supp. 2009).

This language in article 11.07, section 3(d) has long been construed to mean that a 

trial court is not required to conduct an evidentiary hearing to resolve controverted 

material fact issues in a postconviction habeas proceeding. See Ex parte Davila, 530

S.W.2d 543, 545 (Tex. Crim. App. 1975) (op. on reh’g); In re Banister, No. 07-09-00117-

 

1 Article 11.072 provides “procedures for an application for a writ of habeas corpus in a felony or 

misdemeanor case in which the applicant seeks relief from an order or a judgment of conviction ordering 

community supervision.” TEX. CODE CRIM. PROC. ANN. art. 11.072, § 1 (Vernon 2005).

2 Article 11.07 provides procedures for a habeas application following a felony conviction in which 

the applicant received a prison sentence but not the death penalty. See id. art. 11.07, § 1 (Vernon Supp. 

2009); Ex parte Brown, 662 S.W.2d 3, 4 (Tex. Crim. App. 1983) (per curiam).
Ex parte Gonzalez Page 3

CV, 2009 WL 1160966, at *1 (Tex. App.—Amarillo Apr. 30, 2009, orig. proceeding) 

(mem. op.); In re J.W.A., No. 03-03-00464-CV, 2005 WL 2574024, at *4 (Tex. App.—

Austin Oct. 13, 2005, no pet.) (mem. op.).

“[W]hen a legislature reenacts a law using the same terms that have been 

judicially construed in a particular manner, one may reasonably infer that the 

legislature approved of the judicial interpretation.” State v. Medrano, 67 S.W.3d 897, 902

(Tex. Crim. App. 2002).

Herrera Claims

The Beaumont Court of Appeals has recently held that an evidentiary hearing is 

required under article 11.072 if the habeas applicant makes a Herrera claim3 supported 

by newly discovered, affirmative evidence of innocence and the trial judge before 

whom the habeas application is pending did not preside over the applicant’s trial.

4 See

Ex parte Franklin, 310 S.W.3d 918, 921-23 (Tex. App.—Beaumont 2010, no pet.). The 

Beaumont Court cited Ex parte Brown, 205 S.W.3d 538 (Tex. Crim. App. 2006), and Ex 

 

3 The Court of Criminal Appeals recognizes two types of “innocence” claims: (1) a Herrera claim, 

which is “a substantive claim in which applicant asserts his bare claim of innocence based solely on 

newly discovered evidence”; and (2) a Schlup claim, which “is a procedural claim in which applicant’s 

claim of innocence does not provide a basis for relief, but is tied to a showing of constitutional error at 

trial.” Ex parte Franklin, 72 S.W.3d 671, 675 (Tex. Crim. App. 2002) (citing Schlup v. Delo, 513 U.S. 298, 115 

S. Ct. 851, 130 L. Ed. 2d 808 (1995); Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993))

(other citations omitted). The recantation of a witness raises a Herrera claim. See id. at 678 n.7.

4 The Beaumont Court expressly left open “the question of whether a habeas court is required to 

have a hearing when the habeas court has personal knowledge of the prior trial proceedings.” Ex parte 

Franklin, 310 S.W.3d 918, 923 n.5 (Tex. App.—Beaumont 2010, no pet.). The court distinguished the Fort 

Worth Court’s decision in Cummins because the applicant in Cummins raised an ineffective-assistance 

claim rather than a Herrera claim. See id. at 922-23.
Ex parte Gonzalez Page 4

parte Franklin, 72 S.W.3d 671 (Tex. Crim. App. 2002),5 as compelling this conclusion. In 

our view, however, the cited authorities do not require an evidentiary hearing if the 

habeas judge is the same judge who presided over the applicant’s trial, and we do not 

address whether an evidentiary hearing is required if a different judge is called upon to 

decide the habeas application.

In Franklin, the Court of Criminal Appeals addressed the quality of newly 

discovered evidence required to even raise a controverted fact issue on a Herrera claim.

A conviction that results from a constitutionally error-free trial is entitled 

to the greatest respect. Accordingly, we hold that when an applicant 

asserts a Herrera-type claim based on newly discovered evidence, the 

evidence presented must constitute affirmative evidence of the applicant’s 

innocence. Once the applicant provides such evidence, it is then 

appropriate to proceed with a determination of whether the applicant can 

prove by clear and convincing evidence that no reasonable juror would 

have convicted him in light of the newly discovered evidence.

Franklin, 72 S.W.3d at 677-78 (emphasis added) (citation and footnote omitted).

Later, in Brown, the Court of Criminal Appeals cited this paragraph in a 

discussion regarding an applicant’s “entitlement” to a hearing on a Herrera claim.

In Ex parte Franklin, this Court held that, before a habeas applicant is 

entitled to a hearing, the applicant must make a claim that, if true, 

establishes affirmative evidence of his innocence. Then, at the hearing, the 

trial judge assesses the witnesses’ credibility, examines the “newly 

discovered evidence,” and determines whether that “new” evidence, 

when balanced against the “old” inculpatory evidence, unquestionably 

establishes the applicant’s innocence. The habeas judge then sets out 

findings of fact and conclusions of law, and he makes a recommendation 

to this Court. Upon submission to this Court, we review the factual 

findings with deference because the habeas judge is in the best position to 

 

5 The Franklin case decided by the Court of Criminal Appeals arose from the conviction of Brian 

Edward Franklin for aggravated sexual assault of a child in Tarrant County, while the Franklin case 

decided by the Beaumont Court of Appeals arose from the conviction of Tracy Franklin for aggravated 

sexual assault of a child in Jefferson County.
Ex parte Gonzalez Page 5

make credibility judgments. Even though deference is the prescribed 

standard, we are not bound by the habeas judge’s findings, conclusions, or 

recommendations when they are not supported by the record.

Brown, 205 S.W.3d at 546 (emphasis added) (footnotes omitted).

It is not this Court’s place to second guess the Court of Criminal Appeals. 

Nevertheless, it does not appear that that court actually subscribes to the principle that 

a habeas applicant is automatically entitled to a hearing if he produces affirmative 

evidence of innocence. For example, on May 19, 2010, the Court addressed a habeas 

application in which the applicant alleged ineffective-assistance claims and a claim 

“that he is actually innocent because the complainant recanted.” See Ex parte Culpepper, 

No. WR-66,569-03, slip op. at 1 (Tex. Crim. App. May 19, 2010) (per curiam) (not 

designated for publication). The Court remanded the matter to the trial court for 

further proceedings, but did not require the trial court to conduct a hearing.

Applicant has alleged facts that, if true, might entitle him to relief. 

In these circumstances, additional facts are needed. As we held in Ex parte 

Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the 

appropriate forum for findings of fact. The trial court shall order 

Applicant’s trial counsel to respond to Applicant’s claim of ineffective 

assistance of counsel. The trial court may use any means set out in TEX. CODE 

CRIM. PROC. art. 11.07, § 3(d).

If the trial court elects to hold a hearing, it shall determine whether 

Applicant is indigent. If he is indigent and wishes to be represented by 

counsel, the trial court shall appoint an attorney to represent him at the 

hearing.

The trial court shall first make findings of fact as to: (1) whether the 

complainant recanted and, if so, whether her recantation is credible; (2) 

whether the State made a plea offer of ten years and, if so, whether that 

offer was timely conveyed to Applicant; and (3) whether counsel 

investigated the complainant’s allegations. The trial court shall then make 

conclusions of law as to whether counsel was deficient and, if so, whether 
Ex parte Gonzalez Page 6

his deficient performance prejudiced Applicant. Finally, the trial court 

shall make conclusions of law as to whether Applicant has established 

that he is actually innocent. The trial court shall also make any other 

findings of fact and conclusions of law that it deems relevant and 

appropriate to the disposition of Applicant’s claims for habeas corpus

relief.

Id., slip op. at 1-2 (emphasis added) (citations omitted).

Therefore, we hold that an evidentiary hearing is not required under article 

11.072 for a Herrera claim supported by newly discovered, affirmative evidence of 

innocence if the trial judge before whom the habeas application is pending also 

presided over the applicant’s trial.

Conclusion

As with article 11.07, the legislature invested trial courts with broad discretion 

with regard to the means by which controverted fact issues may be resolved in habeas 

proceedings under article 11.072. We infer that the legislature approved of the manner 

in which the Court of Criminal Appeals and other courts have construed this discretion 

under article 11.07 when the legislature chose to employ similar language in article 

11.072. See Cummins, 169 S.W.3d at 757 (“because the language of articles 11.07 and 

11.072 are very similar, we believe that the legislature intended for article 11.072 

applications to be treated much like applications submitted under article 11.07”); see also 

Medrano, 67 S.W.3d at 902. Therefore, we hold that no evidentiary hearing is required

by article 11.072 to resolve controverted facts if the trial judge before whom the habeas 

application is pending also presided over the applicant’s trial. See Cummins, 169 S.W.3d 
Ex parte Gonzalez Page 7

at 757; see also Davila, 530 S.W.2d at 545; Banister, 2009 WL 1160966, at *1; J.W.A., 2005 

WL 2574024, at *4.

Here, the trial court considered Gonzalez’s application, the State’s answer, the 

court’s records, and the court’s personal recollection before making its findings of fact. 

Nothing more is required.

We overrule Gonzalez’s sole issue and affirm the order denying his habeas 

application.

FELIPE REYNA

Justice

Before Chief Justice Gray,

Justice Reyna, and

Justice Davis

Affirmed

Opinion delivered and filed August 11, 2010

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