IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-74,297-01
EX PARTE KEVIN MONTGOMERY HAWK, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR-08-714 IN THE 22ND DISTRICT COURT
FROM HAYS COUNTY
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 three counts of sexual assault and one count of indecency with a child. He was sentenced to imprisonment for twenty-five years for each sexual assault count and twenty years for the indecency count. He did not appeal his convictions.
Applicant contends that the plea agreement was breached because he pleaded guilty on the condition that his sentences would run concurrently with a federal sentence. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to file a response. The trial court may also 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.
The trial court shall make findings of fact as to whether Applicant pleaded guilty pursuant to an agreement that his sentences would run concurrently with a federal sentence. 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 returned to this Court within 120 days of the date of this order. A copy of the reporter’s record of Applicant’s plea shall also 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 25, 2010
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