Lewis, Demarcus Lamond ( 2006 )

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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WR-26,254-03

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EX PARTE DEMARCUS LAMOND LEWIS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NUMBER 241-0230-04 FROM

THE 241^ST DISTRICT COURT OF SMITH COUNTY

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Per curiam. O R D E R  

This is a post-conviction application for a writ of habeas corpus filed pursuant to tex. Code crim. Proc. art. 11.07. Applicant was convicted of the offense of possession of more than one gram of cocaine and punishment was assessed at imprisonment for forty years. This conviction was affirmed, Lewis v. State, No. 07-04-386-CR (Tex. App.- Amarillo, delivered May 18, 2005, no pet.)

Applicant contends, inter alia, that his trial and appellate counsel were both ineffective in failing to challenge the validity of the enhancement of punishment. The trial court has entered findings of fact and conclusions of law that counsel was effective and that these grounds were raised on appeal. However, we do not believe that those factual findings are supported by the record because they do not include any findings concerning the validity of the enhancements, and the appellate opinion did not address counsel's effectiveness nor anything concerning the enhancements except for the timeliness of the notice regarding the enhancements. Additionally, the judgment, docket sheet, and plea papers submitted in this record make no reference to any enhancement allegations, and the clerk's record does not contain the notice pertaining to the enhancements.

Applicant has alleged facts which, if true, might entitle him to relief. Therefore, additional facts need to be developed and the trial court is the appropriate forum because this Court cannot hear evidence. The trial court may resolve the factual issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from both trial and appellate counsel for Applicant, or it may order a hearing. Any hearing is not limited to the above factual issues if the court determines that other factual issues material to the legality of Applicant's confinement should be resolved. In the appropriate case the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to when notice of enhancement was given; what investigation trial counsel conducted into the validity of the prior convictions used to enhance the punishment range; whether Applicant was convicted of both offenses used to enhance the punishment; the date of commission of the offenses underlying those convictions and the date of convictions; and why appellate counsel did not raise any grounds pertaining to the enhancements. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (Tex.Crim.App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾ The record shall also be supplemented with a copy of the notice that the State would seek to enhance punishment; with portions of the reporter's record showing Applicant's plea to the enhancement and any evidence offered to support the enhancement allegations; with any court documents referring to the enhancement allegations; and with copies of the judgments for the convictions used to enhance punishment.

IT IS SO ORDERED THIS THE 10th DAY OF May, 2006

DO NOT PUBLISH

1. In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.

2. Any extensions of this time period should be obtained from this Court.