Opinion
WR-94,828-01
06-28-2023
EX PARTE RALPH BENNETT FULLER JR., Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W09-56881-S(A) IN THE 282ND DISTRICT COURT FROM DALLAS COUNTY
ORDER
PER CURIAM.
Applicant was convicted of evading arrest, which was a state-jail felony, and sentenced to two years' imprisonment. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that his sentence is unlawful because the trial court ordered that it be served in the penitentiary rather than the state jail. The State agree, but there are no findings from the trial court. Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d).
The trial court shall order revocation counsel and the prosecutor at revocation to respond to Applicant's claim, detail the revocation negotiations in the case, and provide this Court with any other relevant facts. See, e.g., Deen v. State, 509 S.W.3d 345 (Tex. Crim. App. 2017) (a defendant's argument that a conviction is void because the sentence is not authorized by the Legislature is subject to principles of estoppel). In developing the record, the trial court may use any means set out in Article 11.07, § 3(d).
Applicant is represented by habeas counsel. Habeas counsel was also revocation counsel. The trial court shall make findings regarding whether Applicant agrees to this representation. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by different counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law regarding whether the sentence is unlawful, whether Applicant agrees to the habeas representation, and whether estoppel should apply. See Deen v. State, supra. The trial court may make any other findings and conclusions that it deems appropriate.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.