EX PARTE JEREMY MARTIN AGUILAR (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-69,719-01 AND WR-69,719-02

EX PARTE JEREMY MARTIN AGUILAR, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. W93-34937-I(A) AND W93-34769-I(A)

IN THE CRIMINAL DISTRICT COURT NO. 2 OF DALLAS COUNTY

Per curiam.

O R D E R

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 these applications for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two felony offenses of burglary of a vehicle and sentenced to 65 years' imprisonment in each case. The Sixth Court of Appeals affirmed his conviction. Aguilar v. State, Nos. 6-94-00179-CR and 6-94-00180-CR (Tex. App. - Texarkana, January 5, 1995, no pets).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because counsel failed to investigate and discover that two prior convictions alleged as sequential felonies under Tex. Penal Code § 12.42 (d) (Vernon 1993), were not in fact sequential. Applicant also contends that his sentences were illegal because the maximum sentences allowed for these offenses under Penal Code § 12.42 (a) were the sentences for second-degree felonies.

The trial court has recommended that relief be granted. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Rich, 194 S.W.3d 508 (Tex. Crim. App. 2006). However, 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 ascertain whether another prior offense was available, so that the State properly could have corrected the sequential-felony allegation by alleging felonies that were in fact sequential within the meaning of Section 12.42(d). 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 court records. Id.

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 attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make a finding of fact as to whether the State properly could have corrected the sequential-felony allegation, to allege felonies that were in fact sequential within the meaning of Tex. Penal Code § 12.42 (d). 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. Any extensions of time shall be obtained from this Court.

Filed: May 21, 2008

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