Opinion
WR-90,536-02
05-03-2023
EX PARTE DEREK ANDREW BODDEN, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W14-52852-N(B) IN THE 283RD DISTRICT COURT FROM DALLAS COUNTY
ORDER
PER CURIAM.
Applicant originally pleaded guilty to the first degree felony offense of fraudulent use or possession of identifying information in exchange for deferred adjudication community supervision. He was later adjudicated guilty and sentenced to eighteen years' imprisonment. The Fifth Court of Appeals dismissed his direct appeal at Applicant's request. Bodden v. State, No. 05-20-00405-CR (Tex. App. - Dallas January 26, 2021) (not designated for publication). 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.
After Applicant's guilt was adjudicated, this Court handed down an opinion in Cortez v. State, in which this Court clarified that under an earlier version of Section 32.51 of the Texas Penal Code, a person's name alone is inadequate to constitute an item of identifying information, but that "the phrase 'identifying information' means any piece of identifying information enumerated in the statute that alone or in conjunction with other information identifies a person, and does not mean each document containing a group of identifying information[.]" Cortez v. State, 469 S.W.3d 593, 600-604 (Tex. Crim. App. 2015).
In 2019 and 2020, the State notified Applicant that there had been an error in determining how to properly count the number of items of identifying information he possessed. Although the State initially notified Applicant in the 2019 communication that the number of items he actually possessed would still support a first degree felony charge, in the 2020 notice the State advised Applicant that upon re-examination, it had determined that the number of items possessed by Applicant would only have supported a second degree felony charge. Based on the second notice, Applicant filed this application in which he contends that he was denied due process and that his guilty plea was involuntary because he was improperly charged with and pleaded guilty to a first degree felony, when he should only have been charged with a second degree felony.
This Court's holding in Cortez did not provide specific guidance for determining how to properly count "items of identifying information" for purposes of the version of Section. 32.51 of the Texas Penal Code pursuant to which Applicant was charged in this case. We order that this application be filed and set for submission to determine (1) the appropriate method for counting the number of items of identifying information possessed by a defendant under the 2013 version of Section 32.51 of the Texas Penal Code; (2) whether Applicant's conviction for a first degree felony violates due process; and (3) whether Applicant's plea of guilty was voluntarily entered. The parties shall brief these issues.
Applicant appears to be represented by counsel. If not, the trial court shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him. See Tex. Code Crim. Proc. art. 26.04. Within sixty days from the date of this order, the trial court shall send to this Court a supplemental transcript containing a confirmation that Applicant is represented by counsel, the order appointing counsel, or a statement that Applicant is not indigent or does not want to be represented by counsel. All briefs shall be filed with this Court within ninety days from the date of this order.