EX PARTE KENNETH CARNER (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-48,464-02

EX PARTE KENNETH CARNER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 007-0386-10 IN THE 7th JUDICIAL DISTRICT COURT

FROM SMITH 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of felony evading arrest/detention and sentenced to 20 years' imprisonment. Applicant did not appeal this conviction.

Applicant contends, inter alia, that he could only have been prosecuted for a Class B misdemeanor because an element of the offense occurred before the 2009 amendments to Tex. Pen. Code, Section 38.04(b)(1). Applicant has alleged facts that, if true, might entitle him to relief. 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 determine whether applicant used a vehicle in the commission of the evading offense for which he was convicted. The trial court shall also determine what applicant's counsel advised applicant about the level of the offense. 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 its personal recollection. 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 findings of fact as to whether applicant used a vehicle in the commission of the evading offense for which he was convicted and as to what advice counsel gave applicant regarding the level of the offense charged. 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: September 14, 2011

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