EX PARTE TENNER REX HICKMAN (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-74,865-01, 74,865-02 & 74,865-03

EX PARTE TENNER REX HICKMAN, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. 04-6-7037, 04-9-7101 & 04-9-7100

IN THE 24TH DISTRICT COURT

FROM JACKSON 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 and was convicted of aggravated perjury and two charges of bail jumping and failure to appear. He was sentenced to twenty years' imprisonment on each charge, all of which were ordered to run consecutive to a prior Jackson County conviction. He did not appeal his convictions.

We remanded these applications to the trial court for an affidavit from counsel and findings of fact and conclusions of law. One of Applicant's allegations was that counsel was ineffective because he advised Applicant that his sentences would run concurrent with a federal sentence that he was serving at the time of his guilty pleas. According to counsel's affidavit, he told applicant that he believed "that a federal sentence for 180 months will likely eat up a state sentence of 20 years for burglary of a building and also two state sentence of bail jumping for 20 years stacked on the burglary of a building." Counsel explained that he believed this to be the case because Applicant was not a trouble maker and that he would likely parole on the first sentence and then the new sentences in less than 10 years in each case. The trial court concluded only that none of Applicant's Jackson County sentences were stacked on his federal sentence.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Moody, 991 S.W.2d 856, 859 (Tex. Crim. App. 1999). 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.

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.

It appears that applicant is in federal custody. The trial court shall determine whether the sentences for the instant convictions are running concurrently with Applicant's federal sentence. The trial court shall determine whether Applicant is currently in the custody of the Texas Department of Criminal Justice or the Federal Bureau of Prisons. The trial court shall order the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit stating whether Applicant is in their custody and detailing whether he is currently being credited for any time spent for the instant Jackson County convictions as well as Jackson County Cause Number 04-6-7036, and what his current projected dates of release are, if any. The trial court shall also obtain a response from the Federal Bureau of Prisons detailing whether Applicant is in federal custody and, if so, any projected release dates from federal custody. If Applicant is in federal custody, the trial court shall also determine whether any detainers have been lodged against him. 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.

These applications 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, and any other court documents necessary to the disposition of the applications, 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: April 13, 2011

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