IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-85,165-02
EX PARTE ROY EUGENE USSERY, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 941215-A IN THE 184TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
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 burglary of a
building and sentenced to eighteen months’ imprisonment. He did not appeal his conviction.
Applicant contends, among other things, that his plea was involuntary because in cause
number 955938, a companion case, he was improperly charged with and convicted of a third degree
felony. We set aside his conviction in cause number 955938. Ex parte Ussery, No. WR-85,165-01
(Tex. Crim. App. June 22, 2016) (not designated for publication).
The trial court recommended that we dismiss or deny this application and found that
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Applicant was not confined for purposes of Article 11.07 and that Applicant’s claims were barred
by the doctrine of laches. We believe that the record should be further developed.
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 the
State and trial counsel to respond to Applicant’s claim. 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 him at the hearing. TEX . CODE CRIM . PROC. art. 26.04.
The trial court shall first make findings of fact and conclusions of law as to whether
Applicant’s pleas in the present case and cause number 955938 were part of a “package deal.” See
Ex parte Cox, 482 S.W.3d 112 (Tex. Crim. App. 2016). The trial court shall then make findings and
conclusions as to whether Applicant’s plea in the present case was involuntary because he was
improperly charged with and convicted of a third degree felony in cause number 955938. 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 claims 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 must be
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requested by the trial court and shall be obtained from this Court.
Filed: February 27, 2019
Do not publish
Ussery, Roy Eugene
Combined Opinion