IN THE COURT OF CRIMINAL APPEALS
                     OF TEXAS
                                         NO. WR-59,823-07


                      EX PARTE JAMES DOUGLAS JONES, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 2003-197D IN THE 421ST DISTRICT COURT
                            FROM CALDWELL COUNTY


        Per curiam.


                                              ORDER

        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 assault

on a public servant and sentenced to twenty-five years’ imprisonment. The Third Court of Appeals

affirmed his conviction. Jones v. State, No. 03-08-00683-CR (Tex. App.—Austin Nov. 20, 2009)

(not designated for publication).

        This is a subsequent application for a writ of habeas corpus. TEX . CODE CRIM . PROC. art.

11.07, § 4. In a supplemental ground, Applicant contends that guilty-plea counsel was ineffective.
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The trial court concluded that Applicant met the subsequent-application provisions in Article 11.07,

§ 4(a)(1) and § 4(a)(2) of the Code of Criminal Procedure, that counsel’s conduct was deficient, and

that Applicant was prejudiced. The trial court recommended that we grant relief.

        In Ex parte Brooks, we said that we may not consider the merits of a subsequent application

under § 4(a)(2) unless an applicant makes a “prima facie showing of actual innocence.” Ex parte

Brooks, 219 S.W.3d 396, 401 (Tex. Crim. App. 2007). We order that this application be filed and

set for submission to determine whether § 4(a)(2) requires an applicant to make a prima facie

showing of factual, as distinguished from legal, innocence.1 In other words, may we review the

merits of a subsequent application under § 4(a)(2) if an applicant has made a prima facie showing

of legal but not factual innocence? Finally, this application is filed and set to determine whether,

given the evidence in his case, Applicant has made a prima facie showing of factual innocence, legal

innocence, or both for purposes of § 4(a)(2). The parties shall brief these issues. Oral argument will

be permitted.

        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



        1
          For purposes of Applicant’s case, “factual innocence” means “an accused did not, in
fact, commit the charged offense or any of the lesser-included offenses.” State v. Wilson, 324
S.W.3d 595, 598 (Tex. Crim. App. 2010). “Legal innocence,” on the other hand, means that a
defendant is not guilty, despite committing the alleged conduct. Ex parte Fournier, 473 S.W.3d
789, 792 (Tex. Crim. App. 2015); see also Johnson v. Hargett, 978 F.2d 855, 859–60 (5th Cir.
1992) (noting that “legal innocence” arises “whenever a constitutional violation by itself requires
reversal,” whereas “actual innocence” means “that the person did not commit the crime”).
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counsel; or a statement that Applicant is not indigent. All briefs shall be filed with this Court within

90 days of this order.



Filed: February 8, 2017
Do not publish