McCuin, Kentrail Ray

• Court: Court of Criminal Appeals of Texas
• Decided: October 29, 2014
• Docket: WR-82,096-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-82,096-01, WR-82,096-02 & WR-82,096-03

EX PARTE KENTRAIL RAY MCCUIN, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. F-12-51308-L, F-12-51309-L & F-12-51310-L IN THE CRIMINAL DISTRICT COURT NO. 5 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 these applications for writs of habeas corpus. Ex

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

arrest, possession of a firearm by a felon, and unlawful possession with intent to deliver cocaine in

a drug free school zone. He was sentenced to two, five, and twenty years’ imprisonment,

respectively. The Fifth Court of Appeals affirmed his convictions. McCuin v. State, Nos. 05-12-

01148-CR, 05-12-01149-CR & 05-12-01150-CR (Tex. App. Dallas—Jul. 26, 2013) (not designated

for publication). 2

Applicant contends, among other things, that his trial counsel rendered ineffective assistance

because he did not object to an improper cumulation order. Applicant’s evading arrest sentence was

ordered to run consecutive to the possession of a firearm by a felon sentence. The possession of a

firearm sentence was ordered to run consecutive to the possession with intent to deliver a controlled

substance in a school zone sentence. TEX . PENAL CODE § 3.03; TEX . HEALTH & SAFETY CODE §

481.134(h).

Applicant has alleged facts that, if true, might entitle him 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. Though counsel

provided an affidavit responding to the claims, it does not address Applicant’s claim that there was

no objection to the cumulation order. 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). 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 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 make specific findings addressing the legal

basis for the cumulation order in Cause Number F-12-51308-L. The trial court shall also make any 3

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

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: October 29, 2014 Do not publish