Martin, Daniel Dewayne ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-69,578-01

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EX PARTE DANIEL DEWAYNE MARTIN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 03-11-5621A IN THE 286TH DISTRICT COURT FROM HOCKLEY 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 pleaded guilty and received deferred adjudication for the offense of sexual assault of a child. Pursuant to the State's motion to adjudicate guilt, Applicant was convicted and sentenced to four years' imprisonment. He did not appeal his conviction.

Applicant contends, inter alia, that he was denied counsel during sentencing. Specifically, he asserts that following the adjudication of guilt the trial court sentenced him to a term of three years' imprisonment, but after Applicant's trial counsel left the court room, the trial court re-sentenced him to four years' imprisonment.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Brown, 477 S.W.2d 552, 554 (Tex. Crim. App. 1972). 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 shall provide the State with another opportunity to respond to Applicant's claim. 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 make findings of fact as to whether Applicant was re-sentenced in the absence of counsel. 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: April 30, 2008

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