Opinion
No. WR-67,932-01
Delivered: October 3, 2007. DO NOT PUBLISH.
On application for a writ of habeas corpus cause no. 05cr-16,538 in the 273rd district court, from shelby county.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant pleaded guilty to burglary of a habitation with intent to commit theft and was placed on deferred adjudication. Following adjudication of guilt he was sentenced to thirty years' imprisonment. He did not appeal his conviction. Applicant contends that his sentence is illegal and violates the federal constitutional prohibition against cruel and unusual punishment. Applicant has alleged facts that, if true, might entitle him to relief. The current record reflects that following the adjudication of guilt Applicant was sentenced as a habitual offender. However, it does not reflect whether Applicant received an opportunity to enter a plea with respect to the prior offenses alleged for enhancement or whether the trial court found that the enhancement allegations were true. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex.Crim.App. 1997), 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. 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 claim that his sentence is illegal. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.