Nevills, Richard Christopher ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-66,419-01

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EX PARTE RICHARD CHRISTOPHER NEVILLS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. F-2002-0673-C IN THE 211^TH DISTRICT COURT OF DENTON 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 theft of more than $20,000 and sentenced to fifteen years' imprisonment.

Applicant contends that his sentence is illegal because he was convicted of a third degree felony and no enhancements were alleged in the indictment or found to be true in the judgment. The trial court has not entered any findings, the State has not filed any response, and nothing in this records shows that any enhancements were alleged or found true. Applicant has alleged facts that, if true, might entitle him to relief. 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). The court shall have the record supplemented with copies of any pleadings alleging that Applicant had previously been convicted of any felony, and of any documents or reporter's record reflecting that the court found that Applicant had previously been convicted of a felony. The trial court may also order depositions, interrogatories or a hearing. 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 Application 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's punishment was enhanced by finding that he had previously been convicted of a felony, or as to any other facts which would authorize the punishment assessed. 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 60 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 90 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: December 20, 2006  

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