Opinion
WR-95,316-01 WR-95,316-02
01-10-2024
EX PARTE TIMOTHY CRAIG HOOD, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 16347-A & 19589-A IN THE 2ND DISTRICT COURT FROM CHEROKEE COUNTY
ORDER
Per curiam.
In Cause Nos. 16347 and 19589, Applicant was convicted of felony driving while intoxicated-third or more, and sentenced to six years' and thirty years' imprisonment, respectively. Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends that he should not have been convicted of felony DWIs. Specifically, he contends that one of the jurisdictional DWI convictions alleged in the charging instruments was not in fact a DWI and so it did not operate to make the instant DWI offenses felonies. TEX. CODE CRIM. PROC. 49.09(b); Ex parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006).
The record before this Court confirms that one of the alleged prior DWI convictions was not in fact a DWI. However, the record does not establish whether the State could have alleged an alternative prior DWI conviction. See Ex parte Rodgers, 598 S.W.3d 262, 269-70 (Tex. Crim. App. 2020). If the State could have alleged an alternative DWI conviction, then Applicant has not shown that he was harmed by the invalid enhancement. Id. at 270.
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). In developing the record, the trial court may use any means set out in Article 11.07, § 3(d).
It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall determine whether the improperly-alleged deadly conduct conviction could have been replaced with a properly alleged, valid jurisdictional enhancement conviction in either Cause No. 16347 or Cause No. 19589. The trial court shall also make specific findings as to whether Cause No. 16347 or Cause No. 17429 could have replaced the improperly-alleged deadly conduct conviction in Cause No. 19589. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
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.
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