             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                               NOS. WR-83,074-04; WR-83,074-05


                   EX PARTE MICHAEL CHARLES HILL, APPLICANT


                  ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
                       CAUSE NOS.WRIT10155 AND WRIT10156
                           IN THE 196TH DISTRICT COURT
                               FROM HUNT 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 indecency with

a child by contact and sexual assault of a child. The Sixth Court of Appeals affirmed his

convictions. Hill v. State, Nos. 06-12-00094-CR; 06-12-00095-CR (Tex. App.—Texarkana, January

8, 2013, no pet.) (not designated for publication).

        Applicant alleges that his life sentences were unauthorized because the prior conviction used

to enhance the punishment ranges of his current offenses was invalid. This Court vacated the prior
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offense on May 23, 2018, on the ground that Applicant’s guilty plea was involuntary. See Ex parte

Hill, WR-83,074-03 (Tex. Crim. App. May 23, 2018) (not designated for publication).

        Both of the instant convictions were for second-degree felony offenses, punishable by not

more than twenty years or less than two years. See TEX . PENAL CODE § 21.11(a)(1), (d); § 22.011(a),

(f); § 12.33(a). The prior conviction was used to enhance the sentence for the indecency conviction

under Section 12.42(b), which provides that a defendant convicted of a second-degree felony shall

be punished for a first-degree felony if he has a prior felony conviction other than a state jail felony.

See TEX . PENAL CODE § 12.42(b). The prior conviction was used to enhance the sentence for the

sexual assault conviction under Section 12.42(c)(2), which provides for an automatic life sentence

if, among other things, a defendant convicted of a certain indecency or sexual assault offense has a

prior conviction for such an offense. See TEX . PENAL CODE § 12.42(c)(2).

        We agree that vacating the prior conviction renders Applicant’s current life sentences illegal.

See Ex parte Rich, 194 S.W.3d 508, 512 (Tex. Crim. App. 2006). Further, Applicant did not waive

this matter by failing to object at trial. At the time of trial, Applicant’s prior conviction was facially

valid, such that defense counsel had no reason to challenge its use for enhancement purposes. See

id. However, the current record does not resolve the question of whether Applicant has any other

prior felony convictions which could have been used or substituted for enhancement purposes. Cf.

Ex parte Parrott, 396 S.W.3d 531, 533 (Tex. Crim. App. 2013).

        Applicant has alleged facts that, if true, might entitle him to relief. See id. 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).
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        It appears that Applicant is represented by counsel. However, if the trial court elects to hold

a hearing and Applicant is not represented by counsel, the trial court 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 Applicant had any prior felony convictions that could

have been used or substituted for enhancement purposes under Texas Penal Code section 12.42(b)

or 12.42(c)(2). 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 must

be requested by the trial court and shall be obtained from this Court.



Filed: June 26, 2019
Do not publish
