Weverka, Nathan Elmer, WR-86,631-01

Applicant Nathan Elmer Weverka was convicted in Brown County for failing to register as a sex offender and sentenced to 25 years as a habitual felon.
He did not appeal the conviction and filed an application for a writ of habeas corpus under Tex. Code Crim. Proc. art. 11.07.
The habeas record contains the indictment and the habitual-enhancement notice, but it is unclear whether the prior offense used to establish his duty to register (Sexual Assault of a Child) is the same conviction used in the habitual-enhancement notice (Rape of a Child).
Applicant contends that using the same prior conviction for both registration duty and sentence enhancement may be unlawful and thus the 25-year sentence may be unauthorized.
The Court found that Applicant alleged facts that, if true, could entitle him to relief and that the trial court must resolve the factual dispute.
The matter was remanded to the trial court for factfinding (including appointment of counsel if indigent) and the trial court must return findings and any hearing record to this Court within set deadlines.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the same prior conviction was used both to establish duty to register and to enhance sentence	Weverka: same prior conviction was used twice, making the enhancement unlawful	State: enhancement was properly applied (implicit)	Trial court must determine whether the same conviction was used and whether enhancement was lawful
Whether Weverka's 25-year habitual-felon sentence is authorized by law	Weverka: sentence unauthorized if enhancement improperly applied	State: sentence authorized if enhancement valid	Trial court to make findings whether sentence is authorized
Whether additional prior felonies could have been pled in enhancement notice	Weverka: not directly argued, but relevant to legality of enhancement	State: may have alternative prior convictions to support enhancement	Trial court must consider other prior felonies that could have been pled (per Ex parte Parrott)
Whether evidentiary hearing and counsel are required at habeas proceeding	Weverka: factual dispute warrants hearing and counsel if indigent	State: (implicit) no relief without proof	If indigent and requests counsel, trial court shall appoint counsel; trial court may hold hearing and must resolve facts

Strickland v. Washington, 466 U.S. 668 (1984) (ineffective-assistance standard establishing prejudice and deficient performance)
Ex parte Young, 418 S.W.2d 824 (1967) (procedures for transmitting habeas applications)
Ballard v. State, 149 S.W.3d 693 (Tex. App.—Austin 2004) (State may not use same prior sexual-assault conviction both to impose registration duty and to enhance sentence for failure to register)
Ex parte Patterson, 993 S.W.2d 114 (Tex. Crim. App. 1999) (standards for habeas relief when counsel performance is at issue)
Ex parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960) (trial court is proper forum for resolving factual disputes in habeas cases)
Ex parte Parrott, 396 S.W.3d 531 (Tex. Crim. App. 2013) (consideration of other prior convictions that could have been pled in enhancement)