              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-82,239-03


                      EX PARTE EYNEL AROLDO GUZMAN, Applicant


               ON APPLICATION FOR A WRIT OF HABEAS CORPUS
            CAUSE NO. W219-81460-08-HC IN THE 219TH DISTRICT COURT
                            FROM COLLIN 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 one count of

aggravated sexual assault of a child and one count of indecency with a child and sentenced to twenty-

five years’ and fifteen years’ imprisonment, respectively. The Fifth Court of Appeals affirmed his

convictions. Guzman v. State, No. 05-09-01043-CR (Tex. App.– Dallas Mar. 15, 2011)(not

designated for publication).

        Applicant contends that his sentences are improper because he was sentenced twice for one

criminal act. He alleges that the sexual assault of a child by digital penetration was predicated on
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a touching which was a part of the indecency with a child by contact. Applicant has alleged facts

that, if true, might entitle him to relief. Patterson v. State, 152 S.W.3d 88 (Tex. Crim. App. 2004).

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).

       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 determine whether the actions alleged in the two counts were separate

and distinct instances or were a part of one assault. The trial court shall make findings of fact and

conclusions of law in regard to Applicant’s claim that his convictions violate double jeopardy. 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. 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: February 4, 2015
Do not publish
