Scott, Bennie Darryl ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-79,741-01

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EX PARTE BENNIE DARRYL SCOTT, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2010-667-C1 IN THE 19^TH DISTRICT COURT FROM MCLENNAN COUNTY

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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 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 endangering a child and sentenced to five years' imprisonment for each count. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement cannot be followed.

Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order counsel to respond to Applicant's claim that his plea was involuntary. 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 and conclusions of law as to whether Applicant pled guilty pursuant to an agreement that this sentence would run concurrently with a federal sentence. If this was the case, the trial court shall make specific findings addressing whether Applicant's sentences are being run concurrently with a federal sentence and detailing how his sentences are being calculated. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: August 21, 2013

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