             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-81,360-01


                      EX PARTE DERRICK KEITH COOKE, Applicant


            ON APPLICATION FOR A WRIT OF HABEAS CORPUS
    CAUSE NO. C-1-009379-0849683-A IN CRIMINAL DISTRICT COURT NO. ONE
                          FROM TARRANT COUNTY


        Per curiam.

                                              ORDER

        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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of assault and

sentenced to three years’ imprisonment. The Second Court of Appeals affirmed his conviction.

Cooke v. State, No. 02-08-00027-CR (Tex. App.—Fort Worth 2009, pet. ref’d).

        Applicant contends, among other things, that trial counsel failed to object to a prior New

Mexico conviction that elevated Applicant’s offense to a third degree felony. Counsel filed a sworn

affidavit and said he “reviewed the applicability of the New Mexico law and compared it to Texas

law. In my opinion, the New Mexico law was substantially the same as Texas law and therefore met
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the definition.” The trial court found his affidavit credible and concluded that in 2001, § 22.01 of

the Penal Code did not prohibit the use of out-of-state convictions as enhancements. The trial court

also cited Garcia v. State, where we said that felony convictions from other states can enhance a

defendant’s sentence in Texas. 145 S.W.2d 180 (Tex. Crim. App. 1940). We believe the record is

not sufficient to resolve Applicant’s claim.

       Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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

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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

       The trial court shall make further findings of fact and conclusions of law as to whether the

2001 version of § 22.01 authorized the use of an out-of-state conviction to elevate a family assault

offense from a Class A misdemeanor to a third degree felony. The trial court shall also determine

whether Applicant had other assault convictions that could have elevated his offense to a third degree

felony. Finally, the trial court shall make further findings and conclusions as to whether counsel was

deficient and Applicant was prejudiced. The trial court shall also make any other findings and

conclusions that it deems relevant and appropriate to the disposition of Applicant’s claim for habeas

corpus relief.
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       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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.



Filed: July 23, 2014
Do not publish
