EX PARTE FREEMAN ARTHUR BROWN v. << (2026)

ORDER

Applicant was convicted of three counts of aggravated sexual assault of a child and sentenced to life imprisonment. The Tenth Court of Appeals affirmed his conviction. Brown v. State, No. 10-12-00264-CR (Tex. App.—Waco Apr. 11, 2013, pet. ref'd). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.

Applicant contends that he is actually innocent of Count III because it charged the same conduct as Count II and was barred by double jeopardy. Therefore, no rational juror could have found him guilty beyond a reasonable doubt. Tex. Code Crim. Proc. Art. 11.07 § 4(a)(2). Applicant has alleged facts that, if true, might entitle him to relief. Ex parte White, 688 S.W.3d 916 (Tex. Crim. App. 2024). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claim. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.

The trial court shall make findings of fact and conclusions of law as to whether Applicant's application is subsequent and subject to dismissal under Tex. Code Crim. Proc. art. 11.07 § 4. If the trial court believes he overcomes the bar on subsequent applications, then the trial court shall make findings regarding whether Applicant is actually innocent, or whether he is otherwise entitled to relief. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.

The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.

Per curiam.

Yeary, J. filed a dissenting opinion.