              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-82,443-01


                         EX PARTE JERRY DALE JONES, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 1407048 IN THE 178TH DISTRICT COURT
                              FROM HARRIS 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 charged by information with

possession of a controlled substance, methamphetamine, in an amount of more than one gram but

less than four grams. The information also alleged that Applicant had a prior felony conviction for

burglary of habitation. On November 5, 2011, Applicant pleaded guilty to the offense as charged

in the information, and was sentenced to three years’ imprisonment. He did not appeal his

conviction.
                                                                                                    2

       Applicant contends that his plea was involuntary and that his conviction constitutes a denial

of due process, because the judgment reflects that he was convicted of possessing more than one

gram but less than four grams of cocaine. Applicant alleges that on November 11, 2013, six days

after he entered his plea, the substance was analyzed by the laboratory and found not to contain

cocaine. Applicant alleges that he would not have pleaded guilty had he known that the evidence

did not support the charge to which he pleaded guilty, and that there is no evidence to support his

conviction for possessing more than one gram but less than four grams of cocaine.

        Although the judgment in this case indicates that Applicant was convicted of possessing

more than one gram but less than four grams of cocaine, the charging document and the waivers,

stipulations and judicial confession in this case show that Applicant was pleading guilty to

possessing more than one gram but less than four gram of methamphetamine. The laboratory report

indicates that the substance possessed by Applicant was analyzed and found to be methamphetamine,

with a net weight of 0.862 grams. The judgment also indicates that Applicant pleaded “true” to the

enhancement allegation, and that it was found to be true by the trial court. However, the judgment

and the plea papers indicate that Applicant was admonished as to, and pleaded guilty to a third

degree felony. Possession of more than one gram but less than four grams of either cocaine or

methamphetamine is a third degree felony, and a single prior felony conviction would enhance the

penalty range to that of a second degree felony. Possession of less than a gram of either substance

would be a state jail felony, which could not be enhanced using a single prior felony conviction.

       Applicant has alleged facts that, if true, might entitle him to relief. 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
                                                                                                       3

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

         The trial court shall first supplement the record with a transcript of the plea proceedings in

this case. The trial court shall make findings of fact as to whether Applicant was admonished as to

the correct punishment range for the offense as charged, and as to whether Applicant pleaded guilty

to possessing more than one gram but less than four grams of methamphetamine, as reflected in the

information, waivers, stipulations and judicial confession, or cocaine, as reflected in the judgment.

The trial court shall also make findings as to whether Applicant pleaded “true” to the enhancement

allegation. If there are errors on the judgment in this case, the trial court shall make findings of fact

as to whether those errors are clerical errors subject to correction by way of a judgment nunc pro

tunc. The trial court shall make findings of fact and conclusions of law as to whether the results of

the analysis performed by the laboratory support the charge to which Applicant pleaded guilty in this

case. The trial court shall make findings of fact and conclusions of law in regard to Applicant’s

claim that his plea was involuntary. 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
                                                                                                  4

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: December 10, 2014
Do not publish
