IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-93,314-01, WR-93,314-02, WR-93,314-03, WR-93,314-04, WR-93,314-05 AND
WR-93,314-06
EX PARTE JOSHUA LUKE MCDONALD, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. A140028AR, A140034AR, A140040AR, A140025AR, A140031AR AND
A140037AR
IN THE 128TH DISTRICT COURT FROM ORANGE COUNTY
Per curiam.
ORDER
Applicant pleaded guilty to six charges of sexual assault of a child and was sentenced by a
jury to fifteen years’ imprisonment for each charge. The trial court ordered the sentence in the -02
case to run consecutively with the sentence in the -04 case. The Ninth Court of Appeals affirmed
his convictions. McDonald v. State, Nos. 09-14-00383-CR, 09-14-00385-CR, 09-14-00387-CR, 09-
14-00382-CR, 09-14-00384-CR and 09-14-00386-CR (Tex. App. — Beaumont, March 2, 2016) (not
designated for publication). Applicant filed these applications for writs of habeas corpus in the
county of conviction, and the district clerk forwarded them to this Court. See TEX . CODE CRIM .
PROC. art. 11.07.
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Applicant contends that he was improperly subjected to double jeopardy, that the trial court
lacked plenary authority to cumulate his sentences, that he was denied due process when the State
made an untimely oral motion to cumulate sentences, and that his trial counsel was ineffective for
failing to adequately object to the trial court’s consideration of and eventual granting of the State’s
motion to cumulate sentences.
In addition, on October 22, 2021, Applicant filed a motion to recuse the trial judge from
presiding over these habeas corpus proceedings pursuant to Rule 18a of the Texas Rules of Civil
Procedure. There is no indication in the record that the trial court considered the motion or complied
with Rule 18a. See Ex parte Sinegar, 324 S.W.3d 578, 579 (Tex. Crim. App. 2010). As a
preliminary matter, the trial judge shall determine whether Applicant’s motion complies with the
requirements of Rule 18a. If the motion does comply with Rule 18a, the trial judge shall either
recuse herself or forward the matter to the presiding judge of the administrative judicial district for
further proceedings.
As to the merits of Applicant’s claims, Applicant has alleged facts that, if true, might entitle
him to relief. Harris v. State, 153 S.W.3d 394 (Tex. Crim. App. 2005); Ex parte Madding, 70
S.W.3d 131, 136 (Tex. Crim. App. 2002); Strickland v. Washington, 466 U.S. 668 (1984).
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 claims. 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
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counsel is appointed or retained, the trial court shall immediately notify this Court of counsel’s
name.
The trial court shall ensure that the habeas records are supplemented with transcripts of the
sentencing proceedings occurring on August 13, 2014, and August 15, 2014. The trial court shall
make findings of fact and conclusions of law as to whether the trial court made an oral
pronouncement of Applicant’s sentences as running concurrently, and as to whether court was
adjourned before the State made an oral motion to cumulate the sentences. The trial court shall make
findings of fact and conclusions of law as to whether Applicant began serving his sentences or
suffered punishment before the court reconvened two days later to consider the State’s motion to
cumulate the sentences. The trial court shall make findings of fact and conclusions of law as to
whether trial counsel objected to the State’s motion to cumulate the sentences, or to the trial court’s
decision to cumulate the sentences. The trial court shall make findings of fact and conclusions of
law as to whether trial counsel’s performance was deficient and whether Applicant was prejudiced.
The trial court may make any other findings and conclusions that it deems appropriate in response
to Applicant’s claims.
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,
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 must be requested
by the trial court and obtained from this Court.
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Filed: December 15, 2021
Do not publish