Bodden, Derek Andrew

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-90,536-01
EX PARTE DEREK ANDREW BODDEN, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W14-52852-N(A) IN THE 195TH DISTRICT COURT
FROM DALLAS 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 fraudulent use
or possession of fifty or more pieces of identifying information and sentenced to eighteen years’
imprisonment.
In habeas, Applicant complains of the legality of the conviction. He provides a letter from
the prosecuting attorney that states as follows (Writ at 57):
[Y]ou were charged with a first degree felony offense because you were determined
to have in your possession fifty (50) or more pieces of identifying information
belonging to another. Upon closer examination, it has been determined that some of
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the identifying information your charge and conviction was based on is not
considered valid evidence in this case.
The letter goes on to state that the prosecuting attorney believes that Applicant still possessed enough
identifying information to make the offense a first-degree felony. Applicant complains that trial
counsel failed to realize the charging error, which Applicant argues could have affected the offense
level and/or the degree of punishment assessed, and he also complains that revocation counsel failed
to inform him that he had a right to appeal from the revocation. There is no response from trial or
revocation counsel, and the State has requested that the trial court resolve the controverted factual
issues.
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 and revocation counsel to respond to Applicant’s claims of ineffective
assistance by explaining counsel’s representation of Applicant, including applicable strategy and
tactical decisions. To obtain the response, 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 regarding the claims raised
in the habeas application. The trial court may also make any other findings of fact and conclusions
of law 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
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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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be
obtained from this Court.
Filed: December 11, 2019
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