             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-80,867-01


                       EX PARTE TONY ALLEN WILBURN, Applicant


                  ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                  CAUSE NO. 16,187-A IN THE 115TH DISTRICT COURT
                              FROM UPSHUR 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 pleaded guilty to possession of

marihuana in a drug free zone and was sentenced to seven years’ imprisonment. He waived his right

to appeal.

        Applicant contends, among other things, that his trial counsel was ineffective and his plea

was involuntary. Applicant alleges that he would not have pleaded guilty had he been correctly

advised as to the punishment range to which he would be subject if convicted of this offense.

        On February 26, 2014, this Court remanded this matter to the trial court to obtain affidavits
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and findings, and to supplement the record with copies of the written plea admonishments and a

transcript of the plea hearing. This Court also ordered the trial court to determine whether or not

Applicant had any other prior felony convictions which could have been used to enhance his

sentence in this case.

        On June 9, 2014, this Court received the supplemental record from the trial court. The

supplemental record contained a second affidavit from Applicant’s trial counsel, in which counsel

stated that during plea negotiations, the prosecutor told counsel that if the case proceeded to trial,

a notice of enhancement would be filed by the State, because Applicant had a prior felony

conviction. Counsel did not specify what the prior conviction which the State intended to use to

enhance the punishment in this case was, but the supplemental record also contained copies of an

indictment, judgment and other documents from a 1982 conviction for burglary of a motor vehicle,

which was a felony offense at the time Applicant committed it. In that case, it appeared that

Applicant had been granted “shock” probation ,but the record did not show whether his probation

was ever revoked, or whether he discharged the sentence on probation. In "shock" probation, when

further execution of the sentence is suspended, the conviction becomes non-final for purposes of

enhancement, and will not become final for such purposes unless revoked. Ex parte Langley, 833

S.W.2d 141 (Tex. Crim. App. 1992). If Applicant successfully discharged his sentence on probation,

then the burglary of a motor vehicle conviction was not available to enhance his sentence in this

case.

        Because the supplemental record after the first remand did not contain copies of the written

plea admonishments or a transcript of the plea hearing, and because it was not clear whether or not

Applicant did have a final felony conviction which could have been used to enhance his punishment
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in this case had he elected to go to trial, this Court remanded the case to the trial court again, on June

25, 2014.

        On November 20, 2014, this Court received a second supplemental record. The second

supplemental record did contain copies of the written admonishments, a transcript of the plea

proceedings, and documents showing that Applicant discharged his sentence in the burglary of a

motor vehicle case on probation. The written admonishments show that Applicant was admonished

that he was charged with a second degree felony, with a punishment range of two to twenty years’

imprisonment. The transcript of the plea hearing shows that the trial court orally admonished

Applicant that he was pleading guilty to a second degree felony, with a punishment range of two to

ten years’ imprisonment. Therefore, both the written and oral admonishments were inaccurate as

to the punishment range Applicant was facing.

        The trial court did not make additional findings of fact as to whether Applicant had any other

prior felony convictions which could have been used to enhance his punishment in this case.

However, it appears that the trial court did have Applicant bench warranted back to Upshur County

to appear before that court for a “pre trial hearing” on August 26, 2014. The record indicates that

on August 28, 2014, Applicant entered a new plea in this same cause number, pleading guilty to the

offense of possession of marihuana without a drug free zone allegation in exchange for a four year

sentence. A new judgment was entered on the same date, showing that Applicant was sentenced

to four years’ imprisonment, with credit for 1,056 days of pre-sentencing time.

        Applicant was originally sentenced in this cause on August 17, 2012. He did not file a

motion for new trial or notice of appeal. The trial court did not have authority to set aside

Applicant’s judgment and sentence, and re-sentence Applicant more than two years later. See Ex
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parte Alexander, 685 S.W.2d 57, 60 (Tex. Crim. App. 1985) (noting that, "[i]t is well established

that only the Court of Criminal Appeals possesses the authority to grant relief in a post-conviction

habeas corpus proceeding where there is a final felony conviction. The trial court is without such

authority."). Accordingly, the judgment of August 28, 2014, is void. Id. The trial court shall vacate

its judgment of August 28, 2014, purporting to re-sentence Applicant.

       Furthermore, additional facts are still needed to address Applicant’s allegations. 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 shall make findings as to whether Applicant

had any prior felony convictions other than the burglary of a motor vehicle conviction, which

Applicant apparently discharged on probation, which could have been used to enhance Applicant’s

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

advised of the correct punishment range for the offense to which he was pleading guilty, or to which

he would be exposed if he elected to go to trial on the charges. The trial court shall make findings

of fact and conclusions of law as to whether the performance of Applicant's trial counsel was

deficient and, if so, whether counsel's deficient performance prejudiced Applicant. 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

deposition, along with the trial court’s supplemental findings of fact and conclusions of law, shall
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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 17, 2014
Do not publish
