Opinion
WR-94,896-01
08-23-2023
EX PARTE FEDERICO VILLA, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR11824-A IN THE 90TH DISTRICT COURT FROM YOUNG COUNTY
ORDER
PER CURIAM
Applicant was convicted of felony DWI-3rd or more and sentenced to 3 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 contends that he should not have been convicted of a felony DWI. Specifically, one of the jurisdictional offenses alleged in the indictment had not resulted in a final conviction and so it did not operate to make this DWI offense a felony. Applicant has alleged facts that, if true, might entitle him to relief. Tex. Code Crim. Proc. 49.09(b); Ex parte Sparks, 206 S.W.3d 680, 682 (Tex. Crim. App. 2006).
The State and the trial court agree that Applicant is entitled to relief. The State notes that a routine audit revealed that the indictment in this case alleged a prior offense for which there had been no conviction. The State observes that there was no finding of guilt anywhere in the record of that prior judgment. However, the record before this Court does not include any documentation concerning the finality of the alleged jurisdictional offenses.
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).
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. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to the finality of Applicant's prior DWI offenses. In addition, the trial court shall determine whether the improperly-alleged conviction could have been replaced with a properly alleged, valid enhancement conviction. 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