Opinion
WR-95,768-01 95,768-02 95,768-03
07-31-2024
EX PARTE HAROLD MOSLEY, Applicant
Do not publish
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 22F0075-005-A, 22F0076-005-A & 22F0737-005-A IN THE 5TH DISTRICT COURT FROM BOWIE COUNTY
ORDER
PER CURIAM.
Applicant was convicted of two counts of theft and one count of fraudulent possession of identifying documents. He was sentenced to twenty months state jail on the theft convictions and six years' imprisonment for the fraudulent possession. Applicant filed these applications for writs of habeas corpus in the county of conviction, and the district clerk forwarded them to this Court. See Tex. Code Crim. Proc. art. 11.07.
Applicant contends that the stacking orders contained in his judgments are improper and should be rescinded. The judgments entered in these cases are inconsistent and the entire record is not clear as to what happened with these cases. The theft convictions state that they are running concurrently with each other, but consecutively with the fraud conviction. However, the fraud judgment states that it is running consecutively with the theft convictions, so as written, the three judgments do not have any sentence running first in the series. The "criminal case summary", which appears to be the electronic docket sheet, on both the theft cases also states that all three cases are to run concurrently with each other. The plea papers for all three cases also show that the plea was with an agreement that all three cases would run concurrently. The certification of right to appeal states that these were plea bargain cases and Applicant therefore had no right to appeal. It is unclear from this record whether Applicant somehow agreed to the stacking order after the plea paperwork was completed, or, if it was not part of the agreed plea, whether Applicant was allowed the ability to withdraw his plea since the judge decided not to follow the agreement between the parties.
Applicant has alleged facts that, if true, might entitle him to relief. Brady v. United States, 397 U.S. 742 (1970). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether the plea agreement in these cases were followed. If not, it shall make findings as to whether Applicant was given the right to withdraw his pleas before sentences were pronounced. The trial court shall also make specific findings as to how these sentences are to be served, and if there is a valid stacking order, which sentence (or sentences) should be running first and which second. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.