Washington, Frederick Earl

• Court: Court of Criminal Appeals of Texas
• Decided: May 10, 2006
• Docket: WR-64,592-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 64,592-01 EX PARTE FREDERICK EARL WASHINGTON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 9560-A IN THE 21^st JUDICIAL DISTRICT COURT

BASTROP 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 robbery, and punishment was assessed at thirty-two years confinement. Applicant's conviction was affirmed on appeal as to the finding of guilt, and reversed and remanded for reassessment of punishment. Washington v. State No. 03-01-00003-CR (Tex. App. --Austin, delivered September 20, 2001, no pet.).

Applicant contends that he was sentenced outside of the authorized punishment range. Specifically, the Applicant contends, and the record reflects, that the intermediate appellate court remanded this cause to the trial court for "reassessment of punishment within the range prescribed for a second-degree felony", and he was then sentenced outside of that range.

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 shall order affidavits, depositions, or interrogatories from counsel, 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 Applicant was improperly sentenced outside of the authorized punishment range, or whether any such error was knowingly, and voluntarily waived by the Applicant. 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.

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 90 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 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 10th DAY OF MAY, 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.