The opinion
IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. AP-76,244
EX PARTE BENJAMIN JOHN SPENCER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. F87-96524-UT IN THE 283RD DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
O R D E R
Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for a writ of habeas corpus. Ex parte
Young , 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated
robbery and sentenced to life imprisonment.
Applicant contends, among other things, that he is actually innocent. We order that this
application be filed and set for submission to determine whether: (1) Applicant properly raised a
free-standing actual innocence claim, see Herrera v. Collins , 506 U.S. 390 (1993); (2) the evidence
he relies on is newly discovered or newly available, see Ex parte Brown , 205 S.W.3d 538 (Tex.
Crim. App. 2006); (3) this Court should consider advances in science and technology when
determining whether evidence is newly discovered or newly available for purposes of actual
innocence; and (4) Applicant has shown “by clear and convincing evidence that no reasonable juror
would have convicted him in light of the new evidence.” Ex parte Elizondo , 947 S.W.2d 202 , 209
(Tex. Crim. App. 1996). The parties shall brief these issues.
It appears that Applicant is represented by counsel. If that is not correct, the trial court shall
determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by
counsel, the trial court shall appoint an attorney to represent Applicant. Tex. Code Crim. Proc. art.
26.04. The trial court shall send to this Court, within 60 days of the date of this order, a supplemental
transcript containing: a confirmation that Applicant is represented by counsel; the order appointing
counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this Court within
90 days of the date of this order.
Filed: October 28, 2009
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