Opinion
WR-95,130-01
10-11-2023
EX PARTE COLBY RESHARD JOHNSON, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-1911783-A IN THE 203RD DISTRICT COURT FROM DALLAS COUNTY
ORDER
PER CURIAM
Applicant was convicted of manufacturing with intent to deliver a controlled substance, methamphetamine, and sentenced to 15 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 alleges that the deadly weapon allegation was improperly used to enhance his conviction. The State responds that the deadly weapon allegation was included in the indictment as a means of providing notice; the parties understood that it was not alleged as an enhancement. Consistent with this response, the writ record identifies only one enhancement allegation, plus the deadly weapon finding. However, the judgment of conviction includes findings that two enhancement paragraphs are true, as well as an affirmative deadly weapon finding.
Applicant has alleged facts that, if true, might entitle to relief. Brady v. United States, 397 U.S. 742 (1970). 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). 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 counsel, the trial court shall appoint counsel to represent 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 determine whether the judgment's finding that two enhancement paragraphs were true is a clerical error, or whether the court and parties intended for two enhancement paragraphs to be found true. If the court determines that the finding of true as to two enhancement paragraphs was a clerical error, then the court may correct such an error by a nunc pro tunc proceeding. Blanton v. State, 369 S.W.3d 894, 898 (Tex. Crim. App. 2012); Ex parte Ybarra, 149 S.W.3d 147, 148 (Tex. Crim. App. 2004). If the trial court enters a nunc pro tunc judgment, copies of such judgment should be forwarded to this Court and to the Texas Department of Criminal Justice.
If the trial court determines that the finding that two enhancement paragraphs were true was not a clerical error, then the trial court shall order trial counsel to respond to Applicant's allegations that counsel failed to explain that the deadly weapon allegation could not be used for enhancement, and coerced Applicant into pleading true to the deadly weapon allegation as an enhancement paragraph.
The trial court shall make findings of fact and conclusions of law as to whether the judgment contains a clerical error that may be corrected by a nunc pro tunc judgment, or whether Applicant received ineffective assistance of counsel concerning the enhancements. 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.