IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 85281 IN THE CRIMINAL DISTRICT COURT
FROM JEFFERSON COUNTY
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded no contest to the offense of indecency with a child, and was sentenced to thirty years' imprisonment. His appeal was dismissed for want of jurisdiction. Hoffpauir v. State, No. 09-03-050-CR (Tex. App. - Beaumont, March 6, 2003).
On March 8, 2006, this Court granted relief on Applicant's previous writ, also challenging this conviction. In his first writ, Applicant alleged that his plea was not knowingly and voluntarily entered, because it was his understanding that he was pleading to a non-aggravated offense, whereas the judgment showed a conviction for indecency with a child under Article 21.11, Section (a)(1) of the Texas Penal Code, which is an "aggravated" offense. Based on the recommendation of the trial court after holding a hearing, this Court granted relief in that it ordered the judgment to be reformed to show a conviction under Article 21.11, Section (a)(2) of the Texas Penal Code, rather than under Section (a)(1).
In this, his second writ, Applicant contends that his thirty-year sentence is illegal, because indecency with a child under Section (a)(2) is a third degree felony, as opposed to indecency with a child under Section (a)(1), which is a second degree felony. Because Applicant was originally indicted for aggravated sexual assault of a child with four prior felony convictions used to enhance the punishment range to that of a habitual offender, and because it is not clear from the record and the plea papers whether the State agreed to drop any or all of the enhancement allegations, it is possible that Applicant pleaded guilty to third degree indecency with a child enhanced to first degree punishment range by two prior felony enhancements.
The trial court, after considering the record, recommends granting relief in the form of a new punishment hearing. However, if Applicant's allegations are true, then the proper remedy would be to reverse his conviction and remand for a new trial. Because the trial court's recommendation is not entirely supported by the record, we believe that additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.
If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether Applicant pleaded true to any of the enhancement allegations, and if so which ones and how many. If the State agreed to drop any or all of the enhancement allegations, the trial court shall supplement the habeas record with any documents showing this agreement. Because Applicant was admonished as to a first degree punishment range, and because he pleaded in exchange for a thirty-year cap, the court shall make findings as to whether the admonishments were consistent with the disposition of the enhancement allegations. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.
This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.
Filed: November 22, 2006
Do not publish