Bennett, Kirk

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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Nos.

WR-80,778-01

WR-80,778-02

WR-80,778-03  

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EX PARTE KIRK BENNETT, Applicant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. D-1-DC-11-205487-A, D-1-DC-11-205488-A, AND D-1-DC-11-205489-A

IN THE 147TH DISTRICT COURT

FROM TRAVIS 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 these applications for writs of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of six counts of burglary of a habitation as a habitual felon, and he was sentenced to concurrent terms of thirty years' incarceration for each offense. There were no direct appeals.

The State charged Applicant in three indictments with burglary of a habitation. Each indictment alleged two counts: (1) Applicant entered the victim's habitation and attempted to commit or committed theft; and (2) Applicant entered the victim's habitation with intent to commit theft. ⁽¹⁾ See Tex. Penal Code § 30.02(a)(1), (a)(3).

Applicant pled guilty to the six counts under plea agreements that disposed of the cases together. He now claims that the convictions for both counts in each indictment constitutes double jeopardy because there was only one unlawful entry in each offense, and he claims that counsel should not have allowed him to plead guilty to all the counts due to the double jeopardy issues. He states that counsel told him there were no problems with the multiple counts when he inquired about them. See Ex parte Cavazos, 203 S.W.3d 333, 337 (Tex. Crim. App. 2006); Martinez v. State, 269 S.W.3d 777, 783 (Tex.App.--Austin 2008); see also Strickland v. Washington, 466 U.S. 668, 687 (1984); Ex parte Diaz, 959 S.W.2d 213, 214 n. 2 (Tex. Crim. App. 1998). Applicant also claims that trial counsel failed to investigate his competency even though Applicant states that he informed counsel that he had mental health issues. See Wiggins v. Smith, 539 U.S. 510, 521 (2003). Applicant includes medical records showing that he reported auditory and visual hallucinations before the time of the offenses and pleas, and he claims his guilty pleas were not knowingly and voluntarily entered.

Regarding these involuntary plea claims, Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). His remaining ineffective assistance and actual innocence claims lack merit. There is no response from Applicant's trial counsel in the record, and there are no findings from the trial court. 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 Applicant's trial counsel to explain his representation of and advice to Applicant, including applicable strategy and tactical decisions, and respond to Applicant's double jeopardy and competency claims as they relate to the voluntariness of Applicant's plea. To obtain the response, the trial court may use any means set out in Tex. Code Crim. Proc. art. 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 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 regarding the remanded claims. The trial court may also make any other findings of fact and conclusions of law it deems relevant and appropriate. In the event that the trial court finds that some of the counts of conviction constitute double jeopardy and should be set aside, the trial court shall inquire of Applicant and the State as to the appropriate remedy and shall make a recommendation to this Court whether only the violative convictions should be set aside or whether the convictions in all six counts should be set aside and Applicant returned to answer all the indictments because the cases were disposed of together under a "package" plea agreement. See Ervin v. State, 991 S.W.2d 801, 817 (Tex. Crim. App. 1999).  

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. 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: February 26, 2014

Do not publish

1.

The -03 burglary also alleged as a count that Applicant entered and attempted to commit or committed robbery, but there is no conviction in the record for this count.