Order filed April 9, 2015




                                     In The


        Eleventh Court of Appeals
                                   ___________

                              No. 11-14-00264-CR
                                   ___________

                 TOMMY VINCENT JETTON, Appellant
                                        V.
                      THE STATE OF TEXAS, Appellee


                      On Appeal from the 266th District Court
                               Erath County, Texas
                        Trial Court Cause No. CR 12704-A


                                    ORDER
       Appellant, Tommy Vincent Jetton, has filed an appeal from an order in
which the trial court denied an application for writ of habeas corpus that was filed
pursuant to Article 11.072 of the Code of Criminal Procedure. TEX. CODE CRIM.
PROC. ANN. art. 11.072 (West Supp. 2014). We abate the appeal.
       In the underlying case, Appellant entered into a plea bargain agreement with
the State and pleaded guilty to the offense of possession of less than one gram of a
controlled substance in penalty group two, a state jail felony. The trial court
convicted Appellant and, in accordance with the plea agreement, suspended the
imposition of Appellant’s sentence and placed him on community supervision in
2008.
        On June 12, 2014, Appellant filed an application for writ of habeas corpus.
The State timely filed a reply to the application. Various documentary evidence
was attached to Appellant’s application and to the State’s reply. The trial court
subsequently denied Appellant’s application without a hearing, as permitted by
Article 11.072, section 6(b).
        In his sole issue on appeal, Appellant contends that the trial court erred in
finding that Appellant’s claims were frivolous. The State asserts that the trial court
did not find that Appellant’s claims were frivolous but, rather, that the trial court
denied the application based on the court record, the pleadings, and all
attachments. Under Article 11.072, section 7(a), a trial court may do either. It is
not clear from the order in this case which holding the trial court intended. The
trial court’s order states as follows:
        The Court, after considering the application . . . and the response . . .
        together with the documents and affidavits attached to each, is of the
        opinion and so finds that Applicant’s application for post-conviction
        writ of habeas corpus in community supervision case is without legal
        or factual merit and same is denied without hearing.
The trial court’s order does not contain any findings of fact or conclusions of law.
        Article 11.072, section 7(a) provides:
               If the court determines from the face of an application or
        documents attached to the application that the applicant is manifestly
        entitled to no relief, the court shall enter a written order denying the
        application as frivolous. In any other case, the court shall enter a
        written order including findings of fact and conclusions of law. The
        court may require the prevailing party to submit a proposed order.
Id. art. 11.072, § 7(a) (emphasis added). Pursuant to Article 11.072, section 7(a),
the trial court must either deny the application “as frivolous” or include in its order
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findings of fact and conclusions of law. The trial court in this case did neither. We
note also that a determination to deny the application as frivolous is to be based on
the application and the documents attached to the application. Id. The order in this
case indicates that the trial court also considered the response and the documents
attached to the response.
      Because the trial court’s order is unclear, we are unable to reach the merits
of the appeal or even to determine whether the trial court should have made
findings of fact and conclusions of law. Accordingly, without addressing the
merits of the appeal, we abate the appeal to permit the trial court to clarify its
order. The trial court is directed to enter an order that complies with Article
11.072, section 7(a). See Salazar v. State, No. 11-11-00029-CR, 2011 WL 829180
(Tex. App.—Eastland Mar. 10, 2011, order) (not designated for publication); Ex
parte Enriquez, 227 S.W.3d 779, 784 (Tex. App.—El Paso 2005, pet. ref’d).
      Within thirty days after the date of this order, the trial court is directed to
(1) enter an order consistent with the requirements of Article 11.072, section 7(a),
which may include findings of fact and conclusions of law, and (2) deliver any
orders and findings of fact and conclusions of law to the trial court clerk. The trial
court clerk shall prepare a supplemental clerk’s record containing any such orders
and the findings of fact and conclusions of law, if any. The supplemental clerk’s
record is due to be filed in this court on or before May 11, 2015.
      This appeal is abated.


                                                    PER CURIAM
April 9, 2015
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

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