## 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-58,179-02

EX P ARTE F AUSTINO OVALLE , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 11-3351-1-HC IN THE 36 DISTRICT COURT T H F ROM SAN P ATRICIO 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 was convicted of four counts of ag g rava ted assault and sentenc ed to thirty -five year s’ imprisonment for eac h count. The Thirteenth Court of Appea ls aff

irmed his convictions. Ovalle v. State , No

. 1 3 -12-00272-CR (Tex. App.—Corpus Christi-EdinburgJ an. 9, 2014) (not desig nated f or publication). Applicant contends, among other things, that he is a ctually innocent, that a trial prosec utor suppressed materia l impeachme nt evidenc e, that a prosec utor knowing ly prese nted false evidenc e, and that his conviction was based on false evidenc e. In support of his claims, he proff ers aff idavits2

from witnesses and his co-de fenda nt. The State rec ommended that the trial court designated issues for r esolution, but the habea s rec ord conta ins no findings fr om the trial court. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Brady v. Maryland, 373 U.S. 83 (1964); Giglio v. United States , 405 U.S. 150 (1972) ; Ex parte Elizondo , 947 S.W .2d 202 (Tex. Crim. App. 1996); Ex parte W einstein , 421 S.W .3d 656, 665 (Tex. Crim. App. 2014). 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 appropriate forum for finding s of fac t. Be fore we make the important decision of whether Applicant is entitled to relief , the rec ord should be more fully develope d. The trial court shall there fore conduct a live evidentiar y hearing on the matter at which testimony is rece ived addr essingthese c laims. It appea rs that Applicant is repr esente d by counsel. Be fore the trial court holds a hearing, it shall deter

mine if Applicant is repr esente d by counsel, and if not, whether Applicant is indige nt. I f Applicant is indige nt, not repr esente d by counsel, and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repr esent Applicant at the hearing

. T E X . C O D E C R I M . P R O C . art. 26.04. The trial cour t s h all make findings of fac t and conclusions of l aw as to whether Applicant has proved by clea

r and convincing evidenc e that he is actua lly innocent of the crimes of conviction. The trial court s h al l make finding s of fac t and conclusions of law addre ssing whether witnesses provided false testimony

and, if so, whe ther it was mate rial. The tr ial court shall makefinding s of fac t and conc l usions of law addre ssing Applicant’s alleg ations that the State withheld materia l impeachme nt evidenc e and elicited false testimony

. In making the finding s, the trial court shall make

cr ed i b i l i ty finding s. Should the Court deter mine that the rec antations are cre dible, it shall make3

finding s as to whether Appli cant’s exposure to party liability

. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropriate to the dispositi on of Applica

nt’s claims for ha

beas c orpus re lief. 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 s up p l em en t al transcript 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, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of the date of t his order . Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Nove mber 7, 2018 Do not publish