IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. W05-51090-H(A)
IN THE CRIMINAL DISTRICT COURT NO. 1 OF DALLAS 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 was convicted of unlawful possession of a firearm by a felon and in accordance with a plea agreement he was sentenced to five (5) years' imprisonment. No direct appeals were taken.
Applicant contends, among other things, that the judgment in this case includes an affirmative deadly weapon finding.
Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Petty, 833 S.W.2d 145 (Tex. Crim. App. 1992). 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 shall make a finding as to whether the judgment included an affirmative finding of a deadly weapon and whether this was a clerical error that has been corrected by a nunc pro tunc judgment. 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 court records. 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 a finding of fact as to whether the initial judgment included an affirmative finding of a deadly weapon and whether a judgment nunc pro tunc has been entered and forwarded to the Texas Department of Criminal Justice - Correctional Institutions Division. The trial court may 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 copies of the initial judgment and the nunc pro tunc judgment, the plea papers, 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: June 20, 2007
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