EX PARTE LAROYCE LATHAIR SMITH (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-36,512-07, WR-36,512-08, WR-36,512-09

EX PARTE LAROYCE LATHAIR SMITH

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS IN CAUSE

NOS. W08-00360-K(A), W08-00361-K(A), AND W08-00362-K(A) IN

CRIMINAL DISTRICT COURT NO. 4

DALLAS COUNTY

Per Curiam.

O R D E R

These are post conviction applications for writs of habeas corpus filed pursuant to the provisions of Texas Code of Criminal Procedure article 11.07.

In June 1991, a jury convicted applicant of capital murder. The jury answered the special issues submitted pursuant to Texas Code of Criminal Procedure article 37.071, and the trial court, accordingly, set punishment at death. This Court affirmed applicant's conviction and sentence on direct appeal. Smith v. State, No. AP-71,333 (Tex. Crim. App. June 22, 1994)(not designated for publication). In 2001, the United States Supreme Court handed down the decision of Penry v. Johnson, 532 U.S. 782 (2001)(Penry II). Through the course of state habeas proceedings, applicant ultimately prevailed on a Penry II claim, and this Court remanded the capital murder case to the trial court for a new punishment hearing. Ex parte Smith, No. AP-74,228 (Tex. Crim. App. June 27, 2007)(not designated for publication).

In lieu of a punishment retrial, the parties entered into a plea agreement in which applicant agreed to a life sentence for the capital murder in exchange for the State refraining from seeking a death sentence. In addition to accepting a life sentence, applicant also agreed to and did enter guilty pleas for three additional offenses which are the subjects of the three writ applications at issue here. For each of these charges, applicant expressly waived numerous rights including the right to attack the convictions by writ of habeas corpus.

Applicant presents the same five allegations in each of his applications. Despite his attempt to couch some of the claims in terms of ineffective assistance of counsel, all of the claims are based upon facts and issues of which applicant was aware at the time he entered into the plea agreement. At the hearing on the plea agreement, the judge specifically asked applicant if he understood the various waivers he had agreed to and whether he was happy with his attorneys' representation or whether he felt that they should have done something more. Applicant told the judge that he was satisfied with his attorneys' representation. In his findings and conclusions entered on the three writ applications, the judge found that entering into the plea agreement to avoid the death penalty was sound, well reasoned trial strategy, and applicant had received the effective assistance of counsel. The judge recommended that the applications be dismissed pursuant to the agreement previously agreed to and signed by applicant, his attorneys, the prosecutor, and the judge.

This Court has reviewed the record and we agree that the applications should be dismissed.

IT IS SO ORDERED THIS THE 22ND DAY OF JUNE, 2011.

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