Lamountain, Leo Peter Iii

• Court: Court of Criminal Appeals of Texas
• Decided: April 22, 2020
• Docket: WR-91,042-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-91,042-01 & 91,042-02

EX PARTE LEO PETER LAMOUNTAIN III, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. CR-18-0193-E-WHC1 & CR-18-0792-E-WHC1 IN THE 22ND DISTRICT COURT FROM HAYS COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to possession of a controlled substance and fraudulent use or

possession of identifying information and was sentenced to ten and fifteen years’ imprisonment,

respectively. He did not appeal his convictions. He 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.

Applicant contends, among other things, that trial counsel, Anthony Rabago and Susan

Schoon, failed to timely convey separate plea offers of seven and ten years. He also contends that

his pleas were rendered involuntary because he was assessed $6,200.00 in court costs, fees, and 2

fines.

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). 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 Rabago to respond to Applicant’s claim that he

failed to timely convey plea offers. Schoon filed a sworn affidavit in response to Applicant’s claims.

The trial court may order her to file a second response. 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 as to whether (1) Schoon’s affidavit and the

response Rabago files are credible and trustworthy; (2) the State made separate plea offers of seven

and ten years in both of Applicant’s cases; (3) if so, counsel timely conveyed these offers to

Applicant and he received the offers in a timely manner;1 and (4) Applicant was found indigent and

the assessment of attorney’s fees in the record is proper. The trial court shall then make conclusions

of law as to whether trial counsel’s conduct was deficient and Applicant would have insisted on a

trial but for counsel’s alleged deficient performance. The trial court may make any other findings

and conclusions that it deems appropriate in response to Applicant’s claims.

1 In his applications, Applicant contends that before he pleaded guilty, he was detained in jails in Waco County and Limestone and that mail was returned. 3

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.

Filed: April 22, 2020 Do not publish