McCullough, Joshua Steven

• Court: Court of Criminal Appeals of Texas
• Decided: September 19, 2018
• Docket: WR-88,895-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-88,895-01 & WR-88,895-02

EX PARTE JOSHUA STEVEN MCCULLOUGH, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 2014F00069 & 2014F00070 IN THE 5TH DISTRICT COURT FROM CASS 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 failure to

comply with registration requirements and sentenced to six years’ imprisonment. He did not appeal

his convictions.

Applicant contends that his plea was involuntary because his counsel did not explain the

consequences of the plea to him. He alleges that counsel did not meet with him in person, only

speaking with him in a single two-minute phone call. He alleges that counsel did not explain the

plea in absentia paperwork and waivers to him, that he did not explain the range of punishment for 2

the offense, and was not present when he signed the plea in absentia. 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 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 his plea was involuntary. The trial court shall make findings as to whether Applicant was

present for his guilty plea hearing or whether the plea in absentia paperwork was utilized to obtain

his guilty plea. The trial court shall make findings as to whether counsel explained the plea

paperwork and consequences of the plea to 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.

These applications 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 must

be requested by the trial court and shall be obtained from this Court. 3

Filed: September 19, 2018 Do not publish