Hopson, James Alvin

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-13,883-04 EX PARTE JAMES ALVIN HOPSON, Applicant ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 29,355 IN THE 27TH JUDICIAL DISTRICT COURT FROM BELL COUNTY Per curiam. O R D E R 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to escape and was sentenced to life imprisonment. He did not appeal his conviction. Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel allowed Applicant to plead guilty in exchange for an unauthorized sentence in this case. Applicant pleaded guilty to escaping from custody after having been arrested for the offense of murder, using a deadly weapon. This offense as charged was a second degree felony. However, Applicant also pleaded true to the enhancement paragraph, which alleged that Applicant had been previously convicted of murder, raising the punishment range to that of a first degree felony. Applicant alleges that the murder conviction alleged in the enhancement paragraph was the same murder charge used as an element of the escape offense, and that it could not be used for both. Applicant's trial counsel has provided an affidavit in which he concedes that the murder charge was erroneously used twice, once as an element of the offense and again to enhance the punishment. Counsel has no independent recollection of this case, which took place more than twenty-eight years ago. Counsel therefore cannot explain why he overlooked the erroneous enhancement, which resulted in a sentence outside the authorized punishment range for a second degree felony. The trial court has entered findings of fact, noting that Applicant has previously challenged his escape conviction by way of a writ of habeas corpus. Therefore, the trial court concludes that Applicant's claim is barred by Article 11.07, Section 4 of the Texas Code of Criminal Procedure. However, in certain cases, this Court may consider the merits of an applicant's subsequent writ under Article 11.07, Section 4(a)(2) of the Texas Code of Criminal Procedure, if the applicant can establish by a preponderance of the evidence that no rational juror could have found the applicant guilty beyond a reasonable doubt, but for a constitutional violation. See Ex parte Knipp, 236 S.W. 214 (Tex. Crim. App. 2007). Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 first supplement the habeas record with a copy of any written admonishments given to Applicant regarding the applicable punishment range for this offense. The trial court shall make findings as to whether Applicant had any previous final felony convictions, other than his conviction for murder in cause no. 28,908 from Bell County, which may have been available for use as an enhancement in this case. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court. Filed: October 28, 2009 Do not publish