Sterling, Joseph Michael ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-42,793-04

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EX PARTE JOSEPH MICHAEL STERLING, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 886600-A IN THE 185^TH JUDICIAL DISTRICT COURT FROM HARRIS COUNTY

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   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 was convicted of failure to comply with sexual registration requirements and sentenced to twenty-seven years' imprisonment. The Seventh Court of Appeals affirmed his conviction. Sterling v. State, No. 07-02-00183-CR (Tex. App. - Amarillo, April 3, 2003, pet. ref'd).

Applicant contends, inter alia, that the State presented no evidence of an element of the offense, specifically that Applicant had been two or more times convicted of a sexually offense. Under former Article 62.06(a) of the Texas Code of Criminal Procedure, proof of two convictions for sexually violent offenses was required in order to show that the defendant was required to verify registration every 90 days. Only if the defendant was required to verify registration every 90 days would the offense of failure to comply with the registration requirements be a second degree felony under former Article 62.10(a)(3). Applicant alleges that the State presented proof of only one prior conviction for a sexually violent offense. While challenges to the sufficiency of the evidence are not cognizable on habeas review, Applicant also alleges that his sentence as a habitual felony offender was unauthorized, and that his trial counsel was ineffective for failing to investigate and challenge the validity of the enhancement allegations.

The trial court has entered findings of fact and conclusions of law, and recommends denying relief. However, the habeas record is not sufficient to address all of Applicant's claims, and the trial court's findings are therefore not entirely supported by the record.

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. 1997), 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 copies of the indictments and judgments in each of the causes used as "reportable convictions" and enhancements in this cause, including cause nos. 446887, 438879, and 776887. The trial court shall make findings of fact as to what evidence the State presented to prove the two sexually violent offenses required to make the instant offense a second degree felony. The trial court shall also make findings as to whether Applicant had more than two prior convictions for sexually violent offenses, and if so, shall provide copies of the judgments in each of those causes. If Applicant did not have more than two convictions for sexually violent offenses, the trial court shall make findings as to whether there were two other prior sequential felony convictions that could have been used to enhance punishment to habitual felony level in this cause. If there were no other such convictions, the trial court shall make findings as to why trial counsel failed to object to the indictment and to Applicant's punishment as a habitual felony offender in this cause. The trial court shall then make findings as to whether the performance of Applicant's trial attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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 31, 2007

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