## 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 NOS. WR-83,074-04; WR -83,074-05

EX P ARTE MICHAEL CHARLES HILL , AP P LICANT
ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS.WRIT10155 AND WRIT10156 IN THE 196 DISTRICT COURT

T H F ROM HUNT COUNTY
Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of the Tex as C o d e o f 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 oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of indece ncy with
a child by contac t and sex u al as s au l t o f a child. The Six th Court of Appea ls aff irmed his convictions. H

il l v . S ta te , N o s . 0 6

- 1 2

- 0 0 0 9 4

- CR ; 06-12-00095- CR (Tex. App.—Texarkana , J anuar y 8, 2013, no pet.) (not de signa ted for publication). Applicant alleg es that his life sentenc es wer e unauthorized beca use the prior conviction used to enhanc e the punishment rang es of his curr ent offe nses was invalid. This Court vacated the prior2

offe nse on May 23, 2018, on the g round that Applicant’s g uilty plea was involuntary
. See Ex parte Hill, WR -83,074-03 ( Tex. Crim . App. May 23, 2018) (not desig nated f or publication). Both of the i nstant convicti o n s we re for second-de g ree felony offe nses, puni shable by not
more than twenty y ear s or less than two y ear s. See T E X . P E N A L C O D E § 21.11(a) (1), (d); § 22.011(a) , (f) ; § 12.33(a)
. The prior conviction was used to enhanc e the sentenc e for the indece ncy conviction under Section 12.42(b), which provides that a defe ndant convicted of a second- deg ree felony shall be punished for a first-deg ree felony if he has a prior felony conviction other than a state jail felony
. See T E X . P E N A L C O D E § 12.42(b). The prior conviction was used t o enhanc e the sentenc e for the sexual assault conviction under Section 12.42(c) (2), which provides for an automatic life sentenc e if, among other things, a defe ndant convicted of a cer tain indece ncy or sexual assault offe nse has a prior convic tion for such a n offe nse. See T E X . P E N A L C O D E § 12.42(c) (2). We ag ree that vacating the prior conviction rende rs Applicant’s curr ent life s e n tence s illega l. See Ex parte Rich, 194 S.W .3d 508, 512 (Tex. Crim. App. 2006). Fur ther, Applicant did not waive this matter by failing to object at trial. At the time of trial, Applicant’s prior conviction was fac ially valid, such that defe nse counsel had no rea son to c halleng e its use for enhanc ement purposes. See id. Howeve r, t he current recor d does not resolve the question of whethe r Appli cant has any other prior felony convictions which could have been used or substitut ed for enhanc ement purposes. Cf. Ex parte Parrott, 396 S.W .3d 531, 533 (Tex. Crim. App. 2013). Ap p l i cant has alleg ed fac ts that, if true, might entitle him to relief
. See id
. I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)
.3

I t appea rs that Applicant is repr esente d by counsel. Howeve r, if the trial court elec ts to hold
a hear ing and Applicant is not repr esente d by counsel, th e t ri al court shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an attorney to repr esent Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall deter

mine whether Applicant had any prior felony convictions that could have been used or substitut ed for enhanc ement purposes under Texas Pena l Code section 12.42(b)
or 12.42(c) (2). The trial court shall also make any other finding s of fac t and conclusions of law that i t d eems relevant and appropr iate to the di sposition of Appli cant’ s claim for habea s corpus reli ef
. This application will be held in abey ance until the trial court has resolved the fac t issues. The i s sues shall be resolved within 90 day s of this order
. A supplemental transcr ipt cont ai n i n g al l 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, shall be for war ded to this Court withi n 120 day s of the date of this order
. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.
Filed: June 26, 2019 Do not publish