Opinion
WR-93,001-02
03-29-2023
EX PARTE JEFFREY DWAYNE BLANKENSHIP, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 4839-C IN THE 271ST DISTRICT COURT FROM JACK COUNTY
OPINION
PER CURIAM
Applicant was convicted of aggravated robbery and sentenced to fifty-five years' imprisonment. While the case was abated, but still on appeal, Applicant was offered a new plea deal and the original judgment was set aside. He pled guilty to robbery and was sentenced to fifty-five years' imprisonment. Pursuant to that new plea deal, Applicant's appeal to the Second Court of Appeals was dismissed. Blankenship v. State, No. 02-19-00069-CR (Tex. App.-Fort Worth Mar. 5, 2020) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
On May 11, 2022, this Court remanded this writ application to the trial court for findings of fact and conclusions of law addressing Applicant's claim that appellate counsel was ineffective because appellate counsel did not inform him that by accepting the plea bargain his appeal would be dismissed. Appellate counsel filed an affidavit in response to the claim stating that Applicant understood the terms of the new plea offer and knew that the appeal would be dismissed.
However, while it is true that Applicant's grounds do not have merit, the trial court did not have the authority to set aside Applicant's conviction and enter a new plea bargain while the case was on appeal. Rule of Appellate Procedure 25.2(g) provides that: "Once the record has been filed in the appellate court, all further proceedings in the trial court-except as provided otherwise by law or by these rules-will be suspended until the trial court receives the appellate-court mandate." Tex.R.App.P. 25.2(g). Accordingly, any order purporting to vacate and re-sentence Applicant undertaken by the trial court is void.
The judgment in cause number 4839 in the 271st District Court of Jack County is reformed to reflect that Applicant was convicted of aggravated robbery and sentenced to fifty-five years in the Texas Department of Criminal Justice.
Because Applicant's appeal was dismissed pursuant to a void plea bargain, we reinstate Applicant's appeal no. 02-19-00069-CR, and place Applicant back in the position that he was in on February 21, 2020.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and the Board of Pardons and Paroles.
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
Keller, P.J., filed a dissenting opinion in which Keel, J., joined.
DISSENTING OPINION
Keller, P.J.
The Court says that the trial court had no authority to set aside Applicant's conviction while his case was on appeal. I agree that if the case had still been in the appellate court, the trial court would have erred to act as it did. But here, on motion of the parties, the court of appeals had at least purported to abate the appeal and remand the case to the trial court to consider a new proposed plea bargain that imposed the same fifty-five year sentence but conferred other benefits on Applicant. If the court of appeals had authority to remand the case for that purpose, then jurisdiction was returned to the trial court, and the trial did not err.
There may be some question, though, about whether the court of appeals had the authority to remand for that purpose. After all, doing so effectively circumvented the deadline for a motion for new trial. But there was no petition for discretionary review, so the parties have forfeited any right to complain about the remand which they both sought. The only remaining question is whether what the court of appeals did is non-forfeitable error.
Applicant makes various claims in this writ application, but the record does not support his claims, and the habeas court recommends that we deny relief. Given the equities, including the lack of merit to his claims and the agreement by all involved with the process employed here, I would deny relief. But if the Court wants to consider granting relief that no one has asked it to do, we should first obtain briefing from the parties on whether the trial court's action in setting aside the original conviction was in fact void.
I respectfully dissent.