Savage, Milton Jr

• Court: Court of Criminal Appeals of Texas
• Decided: May 1, 2019
• Docket: WR-89,608-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,608-01

EX PARTE MILTON SAVAGE JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F-2004-1606-E-WHC 1 IN THE 367TH DISTRICT COURT FROM DENTON 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 aggravated

assault, enhanced by prior convictions, and sentenced to twenty-five years’ imprisonment and a

$5000 fine.

Applicant raises several claims, including claims that his trial counsel rendered ineffective

assistance. Apart from his claim that trial counsel should have objected to the fine, Applicant fails

to show entitlement to habeas relief. Regarding the fine, if the offense of conviction was a second-

degree felony punished as a first-degree felony, the fine could be imposed “not to exceed $10,000.” 2

TEX . PENAL CODE 12.32, 12.42(b). The habitual-felon enhancement, however, does not allow for

the imposition of a fine. TEX . PENAL CODE 12.32 12.42(d). Although the indictment alleged that

Applicant was a habitual felon, the State’s answer appears to allege that the offense may have been

prosecuted as an enhanced second-degree felony. The State wrote as follows:

Applicant was found guilty of aggravated assault, and his two felony

enhancements—Burglary of a Habitation and Retaliation—were found to be true

(Exhibit B). He was sentenced to twenty-five years’ confinement (Exhibit B).

Aggravated assault was and is a second-degree felony. Tex. Penal Code Ann. §

22.02. Under section 12.42, given his enhancements, he could have been subject to

first-degree-felony punishment or a twenty-five to ninety-nine-year range. See Tex.

Penal Code Ann. § 12.42.

“Exhibit B” is the judgment, but it does not state whether the offense of conviction was for a

habitual-felon enhancement or an enhanced second-degree felony. The jury instructions regarding

the applicable range of punishment are not in the habeas record.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 counsel to respond to Applicant’s claim of ineffective assistance of counsel regarding

the fine. 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 3

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 as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. 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 must

be requested by the trial court and shall be obtained from this Court.

Filed: May 1, 2019 Do not publish