Early, Dustin Richard ( 2021 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-93,233-01
EX PARTE DUSTIN RICHARD EARLY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 11663 IN THE 354TH DISTRICT COURT
FROM HUNT COUNTY
Per curiam.
ORDER
Applicant pleaded guilty to possession of a controlled substance with intent to deliver and
was sentenced to twenty years’ imprisonment. See TEX . HEALTH & SAFETY CODE ANN . §
481.112(c). Applicant did not appeal his conviction. 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.
Applicant contends, among other things, that trial counsel was ineffective for failing to
challenge the trial court’s improper cumulation of his sentence in this case with his sentence in
Cause No. 32892CR. Applicant has alleged facts that, if true, might entitle him to relief. Hill v.
Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013).
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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). The trial court shall order trial counsel to
respond to Applicant’s claim. 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 trial counsel’s
performance was deficient and Applicant would have insisted on a trial but for counsel’s alleged
deficient performance. The trial court shall also make specific findings as to whether the plea
agreement specified the sentences in Cause Nos. No. 32894CR and 32892CR would run
consecutively or concurrently. The trial court shall also make specific findings as to whether the
offenses in Cause Nos. No. 32894CR and 32892CR arose out of the same criminal episode
prosecuted in a single criminal action, and if so, whether the trial court incorrectly ordered those
sentences to run consecutively. 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, the
plea papers, 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
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must be requested by the trial court and obtained from this Court.
Filed: November 10, 2021
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