McCarver, Robert Lynn

• Court: Court of Criminal Appeals of Texas
• Decided: April 15, 2015
• Docket: WR-83,035-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-83,035-01; WR-83,035-02; WR-83,035-03

EX PARTE ROBERT LYNN MCCARVER, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. CR01215-HC-1; CR01228-HC-1; CR01229-HC-1 IN THE 6TH DISTRICT COURT FROM RED RIVER 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of two counts

of deadly conduct and one count of child endangerment. After a period of deferred adjudication, he

was sentenced to ten years’ imprisonment for the deadly conduct charges and two years’

imprisonment in state jail for the child endangerment charge. The Sixth Court of Appeals affirmed

his convictions. McCarver v. State, Nos. 06-13-000030-CR; 06-13-000031-CR; 06-13-000032-CR

(Tex. App.—Texarkana Aug. 8, 2013). 2

Applicant contends that his two deadly conduct convictions violate double jeopardy because

the indictments are identical and they arise from the same conduct. Applicant also contends that his

trial counsel rendered ineffective assistance by failing to challenge the convictions on double

jeopardy grounds, by failing to investigate the facts and law of the case, and by coercing him into

pleading guilty by not urging a speedy trial for these charges.

Applicant has alleged facts that, if true, might entitle to relief. Strickland v. Washington, 466

U.S. 668 (1984); Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). 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 trial counsel to respond to Applicant’s claim of ineffective assistance of counsel. 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings regarding Applicant’s claim of a double jeopardy

violation. The trial court shall also make findings of fact and conclusions of law as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. 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 shall

be obtained from this Court.

Filed: April 15, 2015 Do not publish