## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-80,867-01

EX P ARTE TONY ALLE N WILBURN, Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 16,187-A IN THE 115TH DIS TRICT COURT

F ROM UP SHUR COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y o u ng , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant pleade d g uilty to po s s es s i o n o f marihuana in a drug fre e zone and was sentenc ed to seven y ear s’ imprisonment. He waived his rig ht to appea l. Applicant contends, among other t hings, that his trial counsel was ineffe ctive and his plea

was involuntary

. Applicant alleg es that he would not have pleade d g uilty had he been corr ectly advised as to the punishment rang e to whi ch h e wo uld be subject if convicted of this offe nse. On Fe bruar

y 26, 2014, this Court rema nded this matter to the trial court to obtain aff idavits2

and findi n gs , and to supplement the rec ord with copies of the written plea admonishments and a transcr ipt of the plea hear ing. This Court also o rder ed the trial court to deter mine whether or not Appli ca nt had any other prior felony convictions which could have been used to enhanc e his sentenc e in this case. On J une 9, 2014, this C ourt rec eived the supplemental rec ord from the trial court. The supplemental rec ord contained a second aff idavit f rom Applicant’s trial counsel, in w hich counsel stated t hat during pl ea neg otiations, the prosecutor t old counsel that if t h e case proce eded to trial,

a notice of enhanc ement would be filed by the Stat e, b ec au s e Ap plicant had a prior felony convict i o n . Counsel did not specify what the prior conviction which the State intended to use to enhanc e the punishment in this case was, but the s upplemental record also contained co p ies of an indictment, judgme nt and other documents from a 1982 conviction for burg lary of a motor vehicle, which was a felony offe nse at the time Applicant committed it. I n t h at ca s e, i t appeare d that Applicant had be en g rante d “shock” probation ,but the record did not s how whethe r his probation

was ever revoke d, or whether he discharg ed the sentenc e on probation. I n "shoc k" probation, when further execution o f t h e sentenc e is suspended, the conviction become s non-final for purposes of enhanc ement, and will not become final for such purpose s unless revoke d. Ex parte Langley , 833 S.W .2d 141 (Tex. Crim. App. 1992). I f App li cant succe ssfully discharg ed his sentenc e on probation, then the burg lary of a motor vehicle conviction was not available to enhanc e his sentenc e in t his

case . Be cause the supplemental rec ord afte r the first rema nd did not contain copies of the written plea admonishments or a transcr ipt of the plea hear ing, and beca use it was not clea

r whether or not Applicant did have a final felony conviction which could have been used to enhanc e his punishment3

in this case had he elec ted to g o to trial, this Court rema nded the case to the trial court ag ain, on J une 25, 2014. On November 20, 2014, this Court rec eived a second supplemental rec ord. The s econd supplemental rec ord did contain copies of the written admonishments, a transcr ipt o f t h e p lea proce eding s, an d d ocuments showing that Applicant discharg ed his sentenc e in the burg lary of a motor vehicle case on probation. The written admonishments show that Applicant was admonished that he wa s char g ed with a second deg ree felony , with a punishment rang e of two to twe nty y ear s’ imprisonment. The transcr ipt of the plea hear ing shows that th e t ri al co u rt orally admonished Applicant that he was pleading g uilty to a second deg ree felony , with a punishment rang e of two to ten y ear s’ i mprisonment. T h er ef o re, both the writt en and oral admonishments wer e inaccurate as to the punishment rang e Applica nt was fa cing

. The trial court did not make additional finding s of fac t as to whether Applicant had any other prior felony convictio n s whi ch could have been used to enhanc e his punishment in this case . Howeve r, it appea

rs that the trial court did have Applicant bench war rante d back to Upshur County to appea r before that court for

a “pr e trial he aring ” on August 26, 2014. The recor d indicates that

on Aug ust 28, 2014, Applicant enter ed a new plea in this same cause number, pleading g uilty to the offe nse of possession of marihuana without a drug fre e zone alleg ation in exchang e for a four y ear sentenc e. A new judgme nt was entered o n the s ame date, s howing that Applicant was sentenc ed to four y ear s’ imprisonment, with credit for 1,056 day s of pre -sentenc ing time. Ap p l i ca n t was orig inally sentenc ed in this cause on August 17, 2012. He did not fi l e a motion for new trial or notic e o f appea l. The trial court did not have authority to set aside Applicant’ s j u d gm en t and sentence, and re- sentenc e Applicant more than two y ear s later. See Ex4

parte Alexande r , 685 S.W .2d 57, 60 (Tex. Crim. App. 1985) (n oting that, "[i]t is well established that only the Court of Criminal Appe als possesses the authority to g rant relief in a post-conviction habea s corpus proce eding wh ere there is a final felony conviction. The trial court is without such authority .")

. Acc ording ly , the judgme nt of Aug ust 28, 2014, is void. Id

. The trial court shall vacate its judgment of August 28, 2014, purporting to re-se ntence Applicant. Fur thermore , additional fac ts are still neede d to addre ss Applicant’s alleg ations. As we held i n E x parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court i s t h e appropr iate forum for finding s of fac t. The trial court shall make finding s as to whether Applicant had any prior felony convictions other than the burg l ar y o f a m o tor vehicle conviction, which Applicant appar ently discharg ed on probation, which could have been used to enhanc e Applicant’s punishment in this case . The trial court shall make finding s of fac t as to whether Applicant was ever advised of the corr ect punishment rang e for the offe nse to which he was pleading g uilty , or to which he would be exposed if he elec ted to g o to tr ial on the char g es. The trial court shall make finding s of fac t and conclusions o f l aw as to whether the perf ormanc e of Applicant' s trial counsel was defic ient and, if so, whether counsel' s defic ient perf ormanc e prejudice d Applicant. The trial court shall make finding s of fac t a nd conclusions of law in r eg ard to A pplicant’s claim that his ple a was involuntary

. The trial court shall also make any other finding s of fa ct and c onclusions of law that it deems rele vant and a

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of th i s o rd er . A supplemental transcr ipt containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall5

be forwar ded to this Court withi n 120 day s of the date of t his order

. Any extensions of t ime shall be obtained f

rom this Court.

Filed: De cembe r 17, 2014 Do not publish