## 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-89,608-01

EX P ARTE MILTON S AVAG E JR., Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. F -2004-1606- E-WHC 1 IN THE 367T H DISTRICT COURT

F ROM DENTON 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 oung , 418 S.W .2d 824, 826 (Te x . C ri m . App. 1967). Applicant was convicted of ag g ravated assault, enhanc ed by prior convictions, and sentenc ed to t we n t y -f i v e y ear s’ imprisonment and a $5000 fine. Applicant raises se vera l claims, including claims that his tria l c ounsel rende red ineffe ctive assistance

. Apar

t f rom his c laim tha

t trial counsel should ha

ve objected to the fine, Applicant fails to show entitlement to habea s relief

. Reg arding the fine, if the offe nse of conviction was a seconddegree felony punished as a first-degree felony , the fine could be imposed “not to exceed $10,000.”2

T E X . P E N A L C O D E 12.32, 12.42(b). The habit u al -fe lon enhanc ement, however, does not allow for the imposit ion of a fine. T E X . P E N A L C O D E 12.32 12.42(d). Al t h o u gh the indictment alleg ed that Applicant was a habitual felon, the State’s answe r appea rs to alleg e that the offe nse may have been prosec uted as a

n enhanc ed sec ond-degree felony . The State wr ote as follows: Applicant was found guilty of ag g rava ted assault, and his two felony enhanc ements—B urg lary of a Habitation and Retaliation—were found to b e true (Exhibi t B)

. He was sentenc ed to twent y -f i ve y ear s’ confine ment (Exhibi t B)

. Ag g ravated assault was and is a second- degree fe l o n y . T ex. Penal Code Ann. § 22.02. Under section 12.42, g iven his e nhance ments, he could have been subject to first-degree -fe lony punishment or a twenty -five to ninety -nine-year rang e. See Tex. Penal Code Ann. § 12.42. “Exhibi t B” is the judgme nt, but it does not state whether the offen s e o f co n v i ction was for a habitual-fe lon enhanc ement or a n enhanc ed sec ond-degree felony . The jury instructions reg arding the applica

ble ra ng e of punishment ar e not in the habe as re cord. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). 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 shall order trial counsel to respond to A p p li c a nt’ s claim of ineffe ctive assistance of counsel reg arding the fine. 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)

. I f t he trial court elects t o hold a hearing , it shall deter m i ne whether Applicant is indige nt. I f Ap p l icant is indige nt and wishes to be repr esente d by counsel, the trial court shall appoint an3

attorney to repre sent Applicant at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t and conclusions of law as t o wh ether the perf ormanc e o f Ap plicant’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s o f fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The i s s u es s h all be resolved within 90 day s of this order

. A supplemental transcript containing al l aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, alongwith 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 t ime must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: May

1, 2019 Do not publish