             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-89,477-01


                      EX PARTE RODNEY KEITH RODGERS, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 42593CR/A IN THE 443RD DISTRICT COURT
                              FROM ELLIS 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 driving while

intoxicated and sentenced to fifteen years’ imprisonment. He did not appeal his conviction.

        Applicant contends, among other things, that his sentence is illegal because cause numbers

F-9652378-IW and F-9652378-HW, driving while intoxicated convictions alleged as jurisdictional

enhancements in the indictment, are the same 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.
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App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order

trial counsel to respond and state whether he (1) investigated the jurisdictional enhancements in the

indictment, (2) learned that the jurisdictional enhancements were the same conviction, (3) explained

to Applicant before he pleaded guilty that the jurisdictional enhancements were objectionable, and

(4) believed Applicant pleaded guilty knowing that the jurisdictional enhancements were the same

conviction and therefore objectionable. 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

        After reviewing trial counsel’s response, the trial court shall make further findings of fact and

conclusions of law as to whether Applicant should be estopped from arguing that his sentence is

illegal because he pleaded guilty and accepted the benefits of a plea agreement knowing that the

jurisdictional enhancements in the indictment were the same conviction and therefore objectionable.

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



Filed: March 20, 2019
Do not publish
