Opinion
NO. WR-75,656-04
06-06-2018
EX PARTE STEPHEN O'DONOGHUE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 08-CR-4187-A (3) IN THE 28TH DISTRICT COURT FROM NUECES 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 driving while intoxicated and sentenced to twenty-five years' imprisonment. The Thirteenth Court of Appeals affirmed his conviction. O'Donoghue v. State, No. 13-09-00329-CR (Tex. App.—Corpus Christi July 15, 2010) (not designated for publication).
Applicant contends that he is entitled to relief under Article 11.073 of the Code of Criminal Procedure. TEX. CODE CRIM. PROC. art. 11.073. The trial court concluded that this claim was procedurally barred. TEX. CODE CRIM. PROC. art. 11.07, § 4. We disagree.
Applicant has alleged facts that, if true, might entitle him to relief. TEX. CODE CRIM. PROC. art. 11.073. 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 him at the hearing. TEX. CODE CRIM. PROC. art. 26.04.
The trial court shall make further findings of fact and conclusions of law as to whether Applicant is entitled to relief under Article 11.073. 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 6, 2018 Do not publish.