## 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-79,039-02

EX P ARTE ROBERT WALTER FISCHER, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 2004CR0216-W2 IN THE 226TH DIS TRICT COURT

F ROM BEXAR COUNTY

Per curiam . Y

eary, J., not participating.

O R D E R Pursuant to the provision s o f Ar t i cle 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). A j ury convicted Applicant of murder and sentenc ed him to 99 y ear s in prison. The conviction was aff irmed on direc t appea l. Fischer v. State , No. 04-05-00834- CR (Tex. App.—San Antonio del. J un. 10, 2009). This Court denied Applicant’s initial habea s application that challeng ed t h e merits of the conviction. Ex parte Fischer , No. WR -79,039-02 ( Tex. Crim . App. del. Mar . 20, 2013). Applicant contends in this subsequent habe as ap p lication that rele vant scientific evidenc e contra dicts the State’s fore nsic ballistic e vidence that was prese nted at trial. The claim is ba sed on2

a new leg al basis—Article 11.073 of the Code of Criminal Procedur e, which beca me eff ective afte r Applicant’s initial habea s application wa s denied. It states in pertinent par t as follows: (a) This article applies t o rele vant s cientific evidence that: (1) was n o t av ail able to be offe red by a convicted person at the convicted p erson’ s trial; or (2) contra dicts scientific e vidence relied on by the state at trial. (b) A court may g rant a convicted person relief on an application for a writ of habea s corpus if: (1) the convicted person files an applicati o n, in the manner provided by Article 11.07, 11.071, or 11.072, co n t aining specific fac ts indicating that: (A) rele vant s cientific evidence is curr ently available an d was not available at t he ti me of the convicted person’ s trial beca use the evidenc e was not asce rtainable throug h the exercise of rea sonable diligenc e by the convicted person befor e the date of or during the convicted person’ s trial; and (B ) the scientific evidenc e wo u l d b e admi ssible under the Texas Rules of Evidence at a trial held on the date of the application; and (2) the c ourt makes the f

indings de scribed by

Subdivis ions ( 1)(A) and (B ) and also finds that, had the scientific evidence been pr esente d at trial, on the pre pondera nce of the e vidence the per son would not have be en convic ted. T h e t ri al court finds that Applicant’s habea s evidenc e does not contra dict the ballistic evidenc e relied upon by the State at t ri al

. After an independe nt revie w of the rec ord, this Court ag ree s. Fur

ther, Appl i ca n t fa ils to show that his habea s evidenc e reg arding this claim was not

asce rtainable throug h the exercise of rea sonable dilig ence befor e trial. Applicant also claims, under Article 11.073, th at new scientific evidenc e conce rning cellphone-towe r location data contra dicts the cell-phone -tower location evidenc e prese nted at his trial. Acc ording to the t rial court, this habea s evidenc e “was unavailable t o Applicant at the t ime of hi s trial and also con t ra d i cts evidenc e relied upon by the State at trial.” The trial court finds that the evidenc e would be admissi bl e an d t h at , had the jury known of the evidence, Applicant would not have be en convic ted. The tria l court states a s follows: The court has considere d the scientific evidenc e supporting Applicant’s s econd g round for relief and the evidenc e prese nted and relied upon by the State at trial. Cell tower technolog y is a continually evolving scienc e that can often serve s as the crux3

of the State’s case . As the State’s case was primarily circ umstantial, the court finds that the scientific evidenc e prese nted at trial reg arding cell tower technology and the testimony that followed reg arding Applicant’s approximate location at or around the time of the offe nse was vital to the outcome of the case . Thus, the co u rt fi n d s that Applicant has met his burden in proving by a preponde ranc e of the evidenc e that had the s ci en tific evidenc e supporting g round two been prese nted at trial, Applicant would not have be en convic ted. This Court rema ins unconvinc ed t h at t he trial court’s findings on this claim are supported by the rec ord. 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 tria l court is the appr opriate f orum for f

indings of fac t. The trial court shall conduct a live evidentiar y hear in g reg arding Applicant’s cell-phone

tower- location-data claim. I t appea rs that Applicant is repr esente d by habea s counsel. I f Applicant is not repr esente d by habea s counsel, the trial court shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esen t ed by counsel, the trial court shall appoint an attorney to repr esent Applicant at the he aring . T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make additional finding s of fac t assessing the cre dibilit y of the witnesses and shall make additional finding s reg arding whether the habea s evidenc e u p on which Applicant relie s was ascer

tainable through the exercise of rea sonable dil ige nce before Applicant’s trial. The trial court sha ll also make finding s reg ardinglache s. Carrio v. State , 992 S.W .2d 486 (Tex. Crim. App. 1999); overruled in part by Ex parte Pere

z , 398 S.W .3d 206 (Tex. Crim. App. 2013). 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 th i s o rd er . 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, shall4

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: Oc tober 23, 2019 Do not publish