Opinion
NO. WR-86,212-01
01-25-2017
EX PARTE CHAD RAY BENNETT, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. WRIT09020 IN THE 354TH DISTRICT COURT FROM HUNT 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 this application for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of forgery and sentenced to thirteen years' imprisonment. The Sixth Court of Appeals affirmed his conviction. Bennett v. State, No. 06-14-00050-CR (Tex. App.—Texarkana Mar. 12, 2015) (not designated for publication).
Applicant contends, among other things, that trial counsel failed to object that Applicant was convicted of burglary of a building, not burglary of a habitation, in cause number F0739864I, which was alleged as a punishment enhancement. As a result, Applicant contends that the trial court was not authorized to sentence him to thirteen years.
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 shall order trial counsel to respond to Applicant's claim. The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d).
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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make findings of fact and conclusions of law as to whether: (1) Applicant was convicted of burglary of a building in cause number F0739864I; (2) counsel was deficient for not objecting; and (3) if Applicant was convicted of burglary of a building and if counsel had objected, the State could have timely alleged that Applicant had other felony convictions that could have enhanced his punishment to a second-degree felony range. 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 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. 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 must be requested by the trial court and shall be obtained from this Court. Filed: January 25, 2017
Do not publish