IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-12,375-22 AND WR-12,375-23
EX PARTE HERBERT HERMAN FEIST, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 36429 AND 36678 IN THE CRIMINAL DISTRICT COURT
FROM JEFFERSON 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 these applications for writs of habeas corpus. Ex
parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty or no contest
to one charge of unauthorized use of a motor vehicle and one charge of robbery, and was sentenced
to five years’ and eight years’ imprisonment, to run consecutively. He did not appeal his
convictions.
Applicant filed these habeas applications in the district court on January 12 and January 18,
2015. On the application forms, Applicant indicated that he was challenging his 1978 convictions
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in cause numbers 36429 and 36678, respectively. However, the district clerk apparently wrote cause
number 39295 in the heading of both application forms, and the trial court recommended that both
applications be dismissed, because this Court had previously cited Applicant for abuse of the writ
with respect to cause number 39295. This Court received the habeas applications on January 23 and
February 3, 2015, and erroneously concluded that they were barred from consideration because of
the previously-entered abuse order.
It has recently come to the attention of this Court, through the filing of mandamus
applications by Applicant, that this Court’s disposition of the -22 and -23 applications was
erroneous. Therefore, the Court now reconsiders on its own motion the disposition of those
applications, and orders that they be remanded to the trial court for further action.1
The trial court shall order the district clerk to file these two applications under the correct
cause numbers shown on the application forms. The habeas records shall be supplemented to
include the relevant documents, including the charging documents, judgments, plea papers, etc., from
the cause numbers challenged in the applications.
Applicant contends in both applications that his convictions were void, that his sentences
were unauthorized, and that his plea agreement was breached. Applicant has alleged facts that, if
true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in
Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), 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.
1
Although it appears that Applicant discharged his sentences in these causes long ago, he
alleges that they are being used to enhance a pending charge or charges. Therefore, Applicant
has alleged sufficient collateral consequences to permit this Court to consider the merits of his
claims. See Ex parte Harrington, 310 S.W.3d 452 (Tex. Crim. App. 2010).
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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 in regard to Applicant’s
claims that his convictions were void, his sentences unauthorized, and his plea agreement breached.
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 claims for habeas corpus relief.
These applications 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: November 4, 2015
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