EX PARTE JAMES LEE LIKE (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,021-01

EX PARTE JAMES LEE LIKE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W83-93634-U(A) IN THE 291ST JUDICIAL DISTRICT COURT

FROM DALLAS 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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to forgery in 1983, and was and sentenced to two years' imprisonment. He did not appeal his conviction.

Although Applicant has long since discharged his sentence in this cause, the conviction was later used to establish habitual offender status in a Nevada prosecution, for which Applicant received a life sentence without possibility of parole. Because Applicant is currently serving the Nevada life sentence, he has demonstrated that he is suffering collateral consequences of this conviction sufficient to confer habeas jurisdiction on this Court.

In responding to Applicant's writ, the State has invoked the doctrine of laches because Applicant waited more than twenty-four years to bring his claims. Ex parte Carrio, 992 S.W.2d 486, 487-88 (Tex. Crim. App. 1999). However, despite reciting Carrio's requirement that the State make "a particularized showing of prejudice," and noting that the "mere passage of time" is not enough, the State makes only the conclusory statement that "Applicant has waited too long to assert his claims and has prejudiced the State's ability to respond." Absent a particularized showing of how Applicant's delay has prejudiced the State's ability to respond to his claims, the doctrine of laches should not bar review in this case.

Applicant contends, inter alia, that his plea was involuntary and his punishment unauthorized because the indictment failed to allege an offense, and defense counsel failed to advise Applicant that the indictment failed to allege an offense before Applicant pleaded guilty. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 that it shall provide trial counsel with the opportunity to submit an affidavit responding to Applicant's claims. 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 first supplement the habeas record with copies of the indictment, plea documents, and the evidence submitted to support Applicant's plea in this cause. The trial court shall make findings as to whether the indictment properly alleged an offense, and if so, under which part of Tex. Pen. Code §32.21 the State's theory of the offense was brought. The trial court shall make findings as to what evidence was provided to support his plea of guilty to the offense charged. The trial court shall make findings as to whether Applicant was properly advised as to the nature of the charges, the applicable punishment range, the rights he was waiving, and the consequences of his plea. If the indictment did not properly allege an offense under Tex. Pen. Code §32.21, the trial court shall make findings as to why counsel advised Applicant to plead guilty to the offense. 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 claims 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: July 2, 2008

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