EX PARTE MICHAEL LAKEITH HUBBARD (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-69,657-01

EX PARTE MICHAEL LAKEITH HUBBARD, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 05CR-16,561 IN THE 273RD DISTRICT COURT

FROM SHELBY 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 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 delivery of a controlled substance and sentenced to fourteen (14) years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement cannot be followed. Specifically, he alleges that he pleaded guilty upon the condition that he would receive 1578 days credit, but that the agreement cannot be followed as he only committed his offense 737 days before sentencing. He alleges that his trial counsel and the trial judge both assured him that he would get the 1578 days pre-sentence jail time credit and that he would not have pleaded guilty but for the promise of the credit. Applicant has alleged facts which, if true, could entitle him to relief.

On August 20, 2008, and April 30, 2008, this Court remanded this application to get an affidavit from counsel. In response to these remand orders, the trial judge entered findings of fact and conclusions of law recommending that relief be denied because the agreement concerned good time credits and not credit for time served in county jail. However, all court documents, including the transcription of the court reporter's notes from the plea hearing, indicate that the agreement concerned credit for time served in county jail. The only piece of evidence which supports a finding that the agreement concerned good time credits is an affidavit filed by Bethany Stephens, the Assistant District Attorney who prosecuted the case, in response to Applicant's habeas allegations. We note that the information in the affidavit is contrary to the information Stephens provided at the plea hearing, when she advised the trial judge that the "State agrees to dismiss Cause No. 05-CR-16,612 and give him credit for time served which is 1578 days." [emphasis added].

As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for the findings of fact. In this case, we find that a live hearing is necessary to resolve the discrepancy between the information contained in the court record and the information contained in the affidavit. Thus, this cause is remanded to the trial court for a live hearing so that the parties can present evidence regarding Applicant's claim. The trial judge shall determine if Applicant is indigent and wishes to be represented by counsel and, if so, shall appoint an attorney to represent him at the hearing. Tex. Code Crim. Proc. art. 26.04. The following issues shall be addressed at the habeas hearing: (1) whether the promise of time credit was an affirmative part of Applicant's plea agreement and, if so, what type of credit the agreement concerned; (2) whether counsel believes that the promise of time credit was an affirmative part of the plea agreement and, if so, what type of credit the agreement concerned; (3) whether counsel advised Applicant that he would get 1578 days pre-sentence jail time credit if he pleaded guilty and, if so, why he gave Applicant such advise; (4) whether counsel believes that Applicant would not have pleaded guilty, but for the promise of the time credit; and, (5) whether specific performance of the plea agreement is an available remedy and, if not, what remedy Applicant seeks.

The trial court shall make findings of fact as to whether the promise of time credit was an affirmative part of Applicant's plea agreement and, if so, what type of credit the agreement concerned. The trial court shall also make findings of fact as to whether counsel believes that the promise of time credit was an affirmative part of the plea agreement and, if so, what type of time credit he believes the agreement concerned. The trial judge shall make findings of fact as to whether specific performance of the plea agreement is an available remedy and, if not, as to what remedy Applicant seeks. 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: October 29, 2008

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