Jimenez, Terry

• Court: Court of Criminal Appeals of Texas
• Decided: May 18, 2016
• Docket: WR-84,524-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-84,524-01

EX PARTE TERRY JIMENEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 20100D04694 IN THE 409TH DISTRICT COURT FROM EL PASO 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 alleges he was convicted of two

counts of online solicitation of a minor and sentenced to four years’ imprisonment in each count.

There was no appeal.

In Ex parte Lo, this Court declared Penal Code § 33.021(b) unconstitutional. Ex parte Lo,

424 S.W.3d 10 (Tex. Crim. App. 2013). Applicant now contends that in light of Lo his conviction

for count I is no longer valid. The habeas court agrees and recommends granting relief. However,

the writ record does not contain evidence that Applicant was convicted under the unconstitutional 2

statute. The only judgment in the record refers to Section 33.021(c), which Applicant does not

contest.

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.

It appears that Applicant is represented by counsel. If the trial court elects to hold a hearing,

it shall determine if Applicant is represented by counsel, and if not, 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 supplemental findings of fact and conclusions of law in regard to

Applicant’s claim that he was convicted under count one of the indictment. The trial court shall make

specific findings determining whether Applicant was convicted and sentenced under Section

33.021(b) of the Penal Code. 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. The trial court shall supplement the record with any evidence supporting the

supplemental findings.

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 3

obtained from this Court.

Filed: May 18, 2016 Do not publish