EX PARTE JACKIE LEROY PIERCE (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-8,465-10
EX PARTE JACKIE LEROY PIERCE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 55,404 IN THE 264th DISTRICT COURT 
FROM BELL 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 was convicted of possession of methamphetamine and sentenced to ten years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement cannot be followed. Specifically, the Applicant contends that his plea has been rendered involuntary because of counsel's erroneous advice that his state and federal sentences would run concurrently. The record in this case reflects that concurrent sentencing was a part of the plea agreement "unless the fed authorities do not allow." Also, the transcript of the plea hearing reflects the Applicant was admonished by the trial court it could not guarantee that his time would run concurrently. However, counsel's affidavit, which the trial court has found to be credible, states the following, in pertinent part:

I recall that Judge Joe Carroll, on the record, advised JACKIE LEROY PIERCE that it would be up to the federal authorities to run his State Court sentence concurrent with his Federal Court sentence. In the face of that admonition, JACKIE LEROY PIERCE continued with his plea of Guilty to the State charge and acceptance of the ten (10) year sentence from Bell County District Court. It was my understanding and belief at that time that, since he was sentenced in Federal Court first before the Bell County Case was completed, his federal time would run concurrent with his State Court sentence. I did communicate that opinion to JACKIE LEROY PIERCE.

It appears from the record that, despite the trial court's admonition to the contrary, counsel advised the Applicant that his time would run concurrently.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Moody, 991 S.W.2d 856 (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. 1997), 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 as to whether Applicant's federal and state time are running concurrently as promised by counsel. 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: September 29, 2010

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