IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
TRIAL COURT CAUSE NO. 39866 B-1
IN THE 78TH JUDICIAL DISTRICT COURT
FROM WICHITA COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of possession of a controlled substance with intent to deliver, and punishment was assessed at confinement for eighty-five years and imposition of a $250,000 fine. Applicant's judgment of conviction was affirmed on direct appeal. Kinnett v. State, No. 02-03-00292-CR (Tex. App.-Fort Worth 2004, pet. ref'd).
Applicant contends that his conviction violates due process because the quantity of drugs he is alleged to have possessed included a large quantity of toilet water dilutant from the toilet bowl where the drug was found. He alleges the 663 grams of methamphetamine he was convicted of possessing was, in reality, comprised of over 600 grams of toilet water and some lesser quantity of the prohibited drug.
The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. See Seals v. State, No. PD-0678-04, 2005 Tex. Crim. App. LEXIS 1966 (Tex. Crim. App. 2005), Womack, J., concurring. Therefore, it is this Court's opinion that additional facts need to be developed. Because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories, or it may order a hearing.
If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.
Following receipt of additional information, the trial court shall make findings of fact as to what quantity of methamphetamine Applicant was convicted of possessing, if water constitutes any part of that quantity, and if so, where did the water originate and what was its quantity. The trial court may order a quantitative analysis by a chemist for this purpose. If water was part of the quantity of methamphetamine Applicant possessed, the trial court shall additionally make findings as to whether water, and specifically toilet water, can be used to increase the "bulk" or "quantity" of the controlled substance methamphetamine as those terms are used in Tex. Health & Safety Code § 481.002(49). The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. (1) 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. (2)
IT IS SO ORDERED THIS THE TWENTY-FOURTH DAY OF MAY, 2006.
DO NOT PUBLISH
1. 2.