Sadler, Malvin

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-78,538-03
EX PARTE MALVIN SADLER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 10-09-11,312-C IN THE 24TH DISTRICT COURT
FROM DEWITT COUNTY
Per curiam.
ORDER
Applicant was convicted of unlawful possession of a firearm by a felon and sentenced to sixty
years’ imprisonment. The Thirteenth Court of Appeals affirmed his conviction. Sadler v. State, No.
13-10-00570-CR (Tex. App.—Corpus Christi-Edinburg Aug. 31, 2011) (not designated for
publication). 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 contends, among other things, that his trial counsel rendered ineffective assistance
because he did not object to use of the same conviction as both an element of the offense and as a
prior conviction for enhancement purposes. Ramirez v. State, 527 S.W.2d 542, 544 (Tex. Crim.
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Ohio App. 1986); Hernandez v. State, 929 S.W.2d 11, 13 (Tex. Crim. App. 1996).
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 order trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. 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 and conclusions of law as to whether the
performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient
performance prejudiced Applicant. In so doing, the court shall consider whether the State knew of
other prior felony convictions that were available to enhance Applicant’s punishment. 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
deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
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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: June 13, 2018
Do not publish