Early, Dustin Richard

• Court: Court of Criminal Appeals of Texas
• Decided: November 10, 2021
• Docket: WR-93,233-01
• Status: Published

Opinion

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). 2

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 3

must be requested by the trial court and obtained from this Court.

Filed: November 10, 2021 Do not publish