             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-86,139-01


                  EX PARTE ROBERT THOMAS JOHNSON, II, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 15CR3165-83-1 IN THE 56TH DISTRICT COURT
                            FROM GALVESTON 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 possession of

amphetamine and sentenced to two years’ imprisonment. He did not appeal his conviction.

        Applicant contends that his sentence violates due process because the evidence in his case

was tested and determined to be amphetamine in an FDA-approved form. See TEX . HEALTH &

SAFETY CODE § 481.116(b). Applicant has alleged facts that, if true, might entitle him to relief. Ex

parte Mable, 443 S.W.3d 129 (Tex. Crim. App. 2014). However, the record in this case is

incomplete. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez,
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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).

       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 supplement the record with the lab report showing that the evidence was

tested and determined to be amphetamine in an FDA-approved form. 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: January 11, 2017
Do not publish
