Melton, Brian Keith

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-44,431-09
EX PARTE BRIAN KEITH MELTON, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 32651CR-WRIT11697 IN THE 196TH DISTRICT COURT
FROM HUNT COUNTY
Per curiam.
ORDER
The trial court sentenced Applicant to ten years in prison for third-degree felony violation
of a protective order. Applicant did not appeal. Applicant filed this application for a writ of habeas
corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE
CRIM . PROC. art. 11.07.
Although a copy of the protective order is not in the habeas record provided to this Court,
it appears that Applicant was subject to an emergency protective order after being arrested for an
offense involving family violence. Applicant was convicted for violating this protective order. In
several grounds, Applicant raises two main claims regarding this conviction. First, he says the
indictment fails to charge an offense, but counsel failed to challenge it. Second, Applicant alleges
2
he is actually innocent of felony level violation of a protective order because he does not have any
prior convictions for violating a protective order, so the offense is a misdemeanor, but counsel failed
to understand this fact. There is no response from trial counsel in the habeas record or findings from
the trial court resolving the disputed factual issues.
The record should be developed. The trial court is the appropriate forum for findings of fact.
TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to
Applicant’s claims. In developing the record, the trial court may use any means set out in Article
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 wants to be represented by counsel, the trial court shall appoint
counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is
appointed or retained, the trial court shall immediately notify this Court of counsel’s name.
The trial court shall make findings of fact and conclusions of law resolving the disputed
factual issues. The trial court may make any other findings and conclusions that it deems
appropriate.
The trial court shall make findings of fact and conclusions of law within ninety days from
the date of this order. The district clerk shall then immediately forward to this Court the trial court’s
findings and conclusions and the record developed on remand, including, among other things,
affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from
hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested
by the trial court and obtained from this Court.
Filed: January 12, 2022
Do not publish