Lowe, Ryan James

• Court: Court of Criminal Appeals of Texas
• Decided: June 5, 2019
• Docket: WR-89,451-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-89,451-02

EX PARTE RYAN JAMES LOWE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W16-53997-U(B) IN THE 291ST DISTRICT COURT FROM DALLAS 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 indicted in State court for

unlawful possession of a firearm by a felon. He says that he was later indicted in Federal court for

being a felon in possession of a firearm, United States v. Lowe, No. 3:16-cr-00368-D-1 (USDC

Northern Dist. Tex. [Dallas Div.]), and that he pled guilty in both the State and Federal prosecutions.

In this habeas application, Applicant contends that his guilty plea in the State prosecution was

involuntary because the plea agreement is being breached and that he is being denied proper time-

credits on the State sentence. 2

Regarding the time-credit claim, Applicant alleges that he is entitled to pre-sentence jail-time

credit. The appropriate procedure for questioning this credit is for an applicant to present the issue

to the trial court by way of a nunc pro tunc motion. Ex parte Ybarra, 149 S.W.3d 147 (Tex. Crim.

App. 2004). This claim is dismissed. Regarding the claim of a breached plea agreement, the

agreement in the State prosecution called for the State sentence to run concurrently with the Federal

sentence, but Applicant claims that this provision is not being honored. See Ex parte Huerta, 692

S.W.2d 681 (Tex. Crim. App. 1985); Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999).

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 resolve whether Applicant’s plea agreement has been breached. To do so, the

trial court may 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 Applicant at the

hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law in regard to Applicant’s

claim that the plea agreement has been breached and that his guilty plea was involuntary. 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. A supplemental transcript containing all 3

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

Filed: June 5, 2019 Do not publish