Marchand, Douglas Willfred

• Court: Court of Criminal Appeals of Texas
• Decided: January 25, 2006
• Docket: WR-63,074-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-63,074-01 EX PARTE DOUGLAS WILLFRED MARCHAND, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO.9736-A IN THE 46^TH DISTRICT COURT

OF WILBARGER COUNTY

Per curiam.

O R D E R

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of possession of a controlled substance in an amount of 400 grams or more with intent to manufacture, and punishment was assessed at ninety-five years' confinement. Applicant's conviction was affirmed on appeal. Marchand v. State No. 07-00-0085-CR (Tex. App. --Amarillo, delivered July 21, 2003, pet. ref'd.).

Applicant contends inter alia that the indictment in his case was defective and void, and failed to provide the defense with proper notice of the offense charged, that the legal theory upon which he was convicted was impossible, that trial counsel was ineffective for arguing a defense based on an outdated legal theory, that appellate counsel was ineffective for raising issues based on the same outdated understanding of the law, and that the prosecutor made a material misstatement of the law.

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from trial counsel, and appellate counsel and the prosecutor, or it may order a hearing. In the appropriate case the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether the indictment alleged that Applicant possessed more than 400 grams of methamphetamine, or whether it alleged that he intended to manufacture more than 400 grams of methamphetamine. The court shall make findings as to what the substance other than the pure methamphetamine that Applicant was shown to have possessed contained. The court shall also make findings as to whether the degree of the offense of which Applicant was convicted was based on the quantity of the manufactured methamphetamine, the quantity of the chemicals used to manufacture the methamphetamine, the quantity of methamphetamine that could have been manufactured from the chemicals in Applicant's possession, or some combination of those quantities.

The trial court shall make findings as to whether the allegations contained in the indictment were sufficient to apprise Applicant of the basis for determining the quantity of a controlled substance that Applicant possessed with intent to manufacture. The court shall make findings with respect to both Applicant's trial counsel and his appellate counsel, as to whether each of them was aware that the definition of "controlled substance" at the time of Applicant's indictment included the drug, adulterants, dilutants, and immediate precursors, and as to whether each of them based their arguments on this fact. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

The trial court shall supplement the habeas record with copies of all documents upon which its findings are based, including copies of the indictment, judgment, excerpts of the trial transcript, affidavits from counsel, and any other relevant documents.

Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within ninety days of the date of this order. ⁽¹⁾ 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 returned to this Court within one hundred and twenty days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 25^th DAY OF JANUARY, 2006.

EN BANC

DO NOT PUBLISH

1.

In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2.

Any extensions of this time period should be obtained from this Court.