Opinion
WR-93,846-01
05-17-2023
EX PARTE FRANK ROBINSON, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 18-50042A-422-F IN THE 422ND DISTRICT COURTFROM KAUFMAN COUNTY
ORDER
PER CURIAM.
Applicant was convicted of aggravated assault, threaten with a deadly weapon, and was sentenced to sixty five years' imprisonment. The Fifth Court of Appeals affirmed his conviction. Robinson v. State, No. 05-20-00247-CR (Tex. App.-Dallas May 13, 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 this Court remanded this application, the trial court signed findings of fact recommending that this Court grant a new punishment hearing based on the allegation that Applicant had been improperly enhanced to a habitual offender with a prior state jail felony. However, the record is unclear whether there may be other prior felonies that could have been used in place of the evading arrest to enhance Applicant to the habitual punishment range. Specifically, there is mention of a possible federal drug charge that may have been linked to Applicant.
We remand this application to the trial court to determine whether Applicant had a different felony conviction which could have been used as the second prior felony in a habitual punishment scheme. See Ex parte Parrot, 396 S.W.3d 531 (Tex. Crim. App. 2013). It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing, it shall determine if Applicant is represented by counsel, and if not, 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 as to whether Applicant had two prior sequential felony convictions which could have been used to enhance the punishment for this offense to a habitual punishment range. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
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.