Opinion
NO. WR-21,115-02
06-07-2017
EX PARTE LONNIE LYNN JOHNSON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 31675 IN THE 3RD DISTRICT COURT FROM ANDERSON COUNTY Per curiam. KEASLER, J., not participating. 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 unlawful possession of metal or body armor by a felon, impersonation of a public servant, and unlawful possession of a firearm by a felon. He was sentenced to thirty years' imprisonment for each count. The Twelfth Court of Appeals reversed his impersonation of a public servant conviction and affirmed the possession of firearm by a felon and possession of metal or body armor by a felon convictions Johnson v. State, No. 12-15-00186-CR (Tex. App.—Tyler Oct. 12, 2016) (not designated for publication).
Applicant contends, among other things, that his sentences are illegal because there is no proof of prior convictions used as enhancements, causing the sentences to be outside the applicable range of punishment.
Applicant has alleged facts that, if true, might entitle him to relief. The only mention of prior felony convictions in the habeas record appears in the charging instrument, not as an enhancement allegation, but as the prior offense necessary to satisfy the "felon" element in the two "felon in possession" convictions. Ramirez v. State, 527 S.W.2d 542, 544 (Tex. Crim. App. 1986); Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim. App. 1996) 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 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 sentences are illegal. In do doing, the court shall consider whether the State had other prior felony convictions that were available to enhance Applicant's punishment. Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013). 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: June 7, 2017
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