IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-62,699-02
EX PARTE RICHARD TULLOS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR-22984-AA IN THE 217TH/ 159TH JUDICIAL DISTRICT COURT
ANGELINA COUNTY
O R D E R
This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offenses of manufacture of a controlled substance (Count I) and possession of a controlled substance (Count II), and punishment was assessed at fifteen (15) years' and ten (10) years' confinement, respectively. Applicant's convictions were affirmed on appeal. Tullos v. State, No. 09-03-106-CR (Tex. App. --Beaumont, delivered June 9, 2004, pet. ref'd).
Applicant contends that his convictions for possession and manufacture of the same controlled substance constitute double jeopardy.
The trial court has entered findings of fact or conclusions of law finding that there remain no controverted, previously unresolved facts material to the legality of Applicant's confinement. However, we do not believe that those factual findings are sufficient to completely resolve the issue presented. The record does not reflect whether Applicant's claim of double jeopardy is procedurally defaulted or whether the double jeopardy violation is clearly apparent on the face of the record. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000). Because Applicant has stated facts requiring resolution and because this Court does not hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. 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 from counsel or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection and court records.
If the trial court elects to hold a hearing, it 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.
The trial court shall then make findings of fact as to whether Applicant preserved his claim of double jeopardy; whether one offense was a lesser included offense of the other; and whether Applicant received two convictions based on the same conduct and same evidence. 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.
The trial court shall supplement the habeas record with copies of all documents upon which its findings are based, including copies of the indictment, judgment, excerpts of the trial transcript, affidavits from counsel, and any other relevant documents.
Because this Court does not hear evidence, Ex Parte Rodriguez, 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. The trial court shall resolve the issues presented within ninety (90) days of the date of this order. (1) A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within one hundred twenty (120) days of the date of this order. (2)
IT IS SO ORDERED THIS THE 29th DAY OF MARCH, 2006.
EN BANC
DO NOT PUBLISH
1. In the event any continuances are granted, copies of the order granting the continuance
shall be provided to this Court.
2. Any extensions of this time period shall be obtained from this Court.