Figeroa, Michael

• Court: Court of Criminal Appeals of Texas
• Decided: August 20, 2014
• Docket: WR-81,516-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,516-01

EX PARTE MICHAEL FIGEROA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2009-423,705 IN THE 137TH DISTRICT COURT FROM LUBBOCK 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 two counts of

aggravated assault and sentenced to ten years’ imprisonment for Count I and five years’

imprisonment for Count II. He did not appeal his conviction.

Applicant contends, among other things, that convictions violate double jeopardy principles

because he was punished twice for the same offense. “A claimed violation of the prohibition against

double jeopardy is cognizable on post-conviction habeas corpus.” Ex parte Diaz, 959 S.W.2d 213, 2

214 n.2 (Tex. Crim. App. 1998). Applicant has alleged facts that, if true, might entitle him to relief.

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 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 in regard to Applicant’s

claim that convictions for both counts of aggravated assault as alleged in the indictment violate

double jeopardy. 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

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: August 20, 2014 Do not publish