Weverka, Nathan Elmer ( 2017 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-86,631-01
EX PARTE NATHAN ELMER WEVERKA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR24097-A IN THE 35TH DISTRICT COURT
FROM BROWN COUNTY
Per curiam.
ORDER
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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of failure to register
as a sex offender and sentenced to twenty-five years’ imprisonment as a habitual felon. He did not
appeal his conviction.
Applicant contends that his twenty-five year sentence is not lawful. A copy of the indictment
and the notice alleging the prior convictions for purposes of the habitual enhancement are in the
habeas record. However, it is not clear whether the prior Sexual Assault of a Child conviction
alleged in the indictment as the basis for Applicant’s duty to register is the same or different
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conviction than the Rape of a Child conviction alleged in the habitual enhancement notice. See
Ballard v. State, 149 S.W.3d 693 (Tex. App.—Austin 2004, PDR ref’d) (holding that the State could
not use defendant’s prior sexual assault conviction to enhance his sentence for failing to register as
sex offender, where the State had already used the same prior sexual assault conviction to prove
defendant had duty to register as sex offender).
Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 resolve the disputed factual issue. The trial court may use any means set out in TEX . CODE
CRIM . PROC. art. 11.07, § 3(d).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 and conclusions of law as to whether the habitual
enhancement was lawfully applied to Applicant and whether the twenty-five year sentence is
authorized by law. In doing so, the trial court shall consider any other prior felony convictions that
could have been pled in the enhancement notice. See Ex Parte Parrott, 396 S.W.3d 531 (Tex. Crim.
App. 2013). 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. A supplemental transcript containing all
affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or
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deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
be forwarded to this Court within 120 days of the date of this order. Any extensions of time must
be requested by the trial court and shall be obtained from this Court.
Filed: April 26, 2017
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