Bodden, Derek Andrew

• Court: Court of Criminal Appeals of Texas
• Decided: December 11, 2019
• Docket: WR-90,536-01
• Status: Published

Opinion

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 2

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 3

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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