Melton, Brian Keith

• Court: Court of Criminal Appeals of Texas
• Decided: January 12, 2022
• Docket: WR-44,431-09
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-44,431-09

EX PARTE BRIAN KEITH MELTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 32651CR-WRIT11697 IN THE 196TH DISTRICT COURT FROM HUNT COUNTY

Per curiam.

ORDER

The trial court sentenced Applicant to ten years in prison for third-degree felony violation

of a protective order. Applicant did not appeal. Applicant filed this application for a writ of habeas

corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX . CODE

CRIM . PROC. art. 11.07.

Although a copy of the protective order is not in the habeas record provided to this Court,

it appears that Applicant was subject to an emergency protective order after being arrested for an

offense involving family violence. Applicant was convicted for violating this protective order. In

several grounds, Applicant raises two main claims regarding this conviction. First, he says the

indictment fails to charge an offense, but counsel failed to challenge it. Second, Applicant alleges 2

he is actually innocent of felony level violation of a protective order because he does not have any

prior convictions for violating a protective order, so the offense is a misdemeanor, but counsel failed

to understand this fact. There is no response from trial counsel in the habeas record or findings from

the trial court resolving the disputed factual issues.

The record should be developed. The trial court is the appropriate forum for findings of fact.

TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to

Applicant’s claims. In developing the record, the trial court may use any means set out in Article

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 wants to be represented by counsel, the trial court shall appoint

counsel to represent him at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is

appointed or retained, the trial court shall immediately notify this Court of counsel’s name.

The trial court shall make findings of fact and conclusions of law resolving the disputed

factual issues. The trial court may make any other findings and conclusions that it deems

appropriate.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP. P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: January 12, 2022 Do not publish