EX PARTE DAVID HARLEY BAILEY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NOS. WR-60,492-01, -02, -03 & -04

EX PARTE DAVID HARLEY BAILEY, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

CAUSE NOS. 88-CR-145-B, 88-CR-142-B, 88-CR-139-B & 88-CR-144-B

IN THE 138TH DISTRICT COURT

FROM CAMERON 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts of injury to a child and sentenced to ten years' imprisonment on each count. He was also convicted of two counts of aggravated sexual assault and sentenced to twenty years' imprisonment on each count. He did not appeal his convictions.

Applicant contends, among other things, that he was denied his right to appeal and that the trial court had no authority to order his sentences to run consecutively. On April 13, 2005, we denied these applications. On December, 15, 2010, we reconsidered the denial of Applicant's out-of-time appeal claim on our own motion, remanded these applications, and directed the trial court to make findings of fact and conclusions of law as to whether Applicant was entitled to be in the appellate process and, if so, whether he was denied his right to appeal.

On remand, the trial court concluded that Applicant was entitled to be in the appellate process because he had filed timely notices of appeal. The trial court recommended that we grant Applicant's request for out-of-time appeals. We concluded that Applicant was not entitled to be in the appellate process, see Ex parte Crow, 180 S.W.3d 135, 138 (Tex. Crim. App. 2005), and denied his out-of-time appeal claim.

On March 9, 2011, we remanded these applications for further findings of fact and conclusions of law as to whether Applicant's sentences were improperly cumulated. We directed the trial court to determine whether Applicant's sentences could have been cumulated under Section 3.03 of the Penal Code in effect when Applicant committed his offenses.

On remand, after holding an evidentiary hearing, the trial court determined, among other things, that Applicant pleaded no contest and was sentenced in a single criminal action. The trial court concluded that Applicant was improperly sentenced and that his sentences should have run concurrently.

We believe that the record is not sufficient to resolve Applicant's claim. Accordingly, the trial court shall make further findings of fact as to what evidence, if any, supports its previous finding that Applicant pleaded no contest and was sentenced in a single criminal action. We are not able to determine on the record before us whether Applicant's cases were prosecuted in a single criminal action. See LaPorte v. State, 840 S.W.2d 412, 414 (Tex. Crim. App. 1992) (holding that the Legislature intended single criminal action to refer to a single trial or plea proceeding). In making these findings, the trial court shall order trial counsel to file a response and state whether Applicant's cases were prosecuted in a single criminal action. The trial court shall also make a credibility finding, based on Applicant's testimony, as to whether Applicant waived his right not to have his sentences stacked. See Ex parte McJunkins, 954 S.W.2d 39 (Tex. Crim. App. 1997). Finally, the trial court shall determine whether Applicant's claim is barred by the doctrine of laches. See Ex parte Carrio, 992 S.W.2d 486 (Tex. Crim. App. 1999).

The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). Applicant appears to be represented by counsel. If he is not and the trial court elects to hold another 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

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, 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: June 15, 2011

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