EX PARTE DANNY RAY LACY, JR. (other)

Texas Judiciary Online - HTML Opinion     Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-68,446-01 & WR-68,446-02

EX PARTE DANNY RAY LACY, JR., Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 9912204A & 9915507A IN THE 8TH JUDICIAL DISTRICT COURT

FROM HOPKINS COUNTY

Per curiam.

O R D E R

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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty in these causes to one charge of aggravated robbery and one charge of aggravated assault, and was sentenced to life imprisonment for the aggravated robbery and twenty years' imprisonment for the aggravated assault, to be served concurrently. He did not appeal his convictions.

Applicant contends, inter alia, that his pleas were involuntary, that his trial counsel was ineffective, and that his convictions in these two causes violate the constitutional prohibition on double jeopardy. This Court remanded the matter to the trial court to obtain an affidavit from trial counsel, to supplement the habeas record, and to obtain findings of fact and conclusions of law regarding Applicant's claims. Trial counsel submitted an affidavit responding to Applicant's allegations. The trial court entered findings that the facts asserted in counsel's affidavit are true. However, the facts asserted in counsel's affidavit are inconsistent with the contents of the supplemental records in these causes.

In his affidavit, counsel states that Applicant pleaded guilty to these two charges pursuant to an agreement whereby the State would not pursue two other aggravated assault charges arising out of the same incident. Although Applicant pleaded for the maximum sentence in both of these causes, the State would agree not to seek stacked sentences. The supplemental record, however, reflects that Applicant pleaded guilty to all four charges, and received the maximum sentence for all four charges. The two aggravated assault charges not challenged by these writs alleged aggravated assaults against two other complainants during the course of the same aggravated robbery. However, the aggravated assault charged in Cause No. 9915504A alleged the same complainant as the aggravated robbery charged in Cause No. 9915507A.

Because the only information in the habeas record regarding the facts of these offenses is the recitation of the facts contained in counsel's affidavit, it remains unclear whether Applicant could have been convicted at trial of both the aggravated robbery and the aggravated assault against the same complainant. 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). 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.

The trial court shall make findings of fact and conclusions of law as to whether there were additional charges pending against Applicant which were dismissed pursuant to this plea agreement. If so, the trial court shall supplement the record with copies of the charging instruments in those cases. If, as the record suggests, Applicant pleaded guilty to all four of the charged offenses in exchange for concurrent maximum sentences, the trial court shall make findings as to whether Applicant could have been charged with separate aggravated assaults against the same complainant, based on the facts of the case. If the trial record contains any account of the facts of this case, including police reports, stipulations, or any other evidence introduced to support the pleas, the trial court shall supplement the habeas records with copies of such documents. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: March 5, 2008

Do not publish