McGee, Steven

• Court: Court of Criminal Appeals of Texas
• Decided: March 20, 2019
• Docket: WR-36,264-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-36,264-02

EX PARTE STEVEN MCGEE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 01-0011X(A) IN THE 71ST DISTRICT COURT FROM HARRISON 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 pleaded guilty to one count of

indecency with a child by contact, and one count of sexual assault of a child, and was sentenced to

fifteen years’ imprisonment for the indecency count, and twenty years’ imprisonment for the sexual

assault count. He did not appeal his conviction.

Applicant contends, among other things, that his plea agreement was breached because the

agreement called for concurrent sentences and the oral pronouncement called for concurrent

sentences for the two counts. However, the written judgment indicates that the sentences are to run 2

consecutively. Applicant presents evidence that TDCJ was treating the sentences as concurrent until

2018, when a “correction” was entered and the sentences were re-calculated as consecutive.

Applicant also alleges that his parole eligibility date was miscalculated because when his sentences

were being treated as concurrent his parole eligibility date was based on the twenty-year sentence,

as opposed to being based on the fifteen-year sentence as it would have been if the sentences were

considered consecutive. 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 order the Texas Department of Criminal Justice’s Office of the General Counsel to file an

affidavit listing Applicant’s sentence begin date for each of the counts to which he pleaded guilty.

The affidavit shall state whether Applicant’s sentences were originally considered to be concurrent,

and if they were recalculated as consecutive, the affidavit shall state when and why that change was

made. The affidavit shall state how Applicant’s parole eligibility date(s) were calculated, and when,

if ever, Applicant was ever approved for parole release. 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

claims that his plea agreement was breached and his parole eligibility date miscalculated. The trial

court shall also make any other findings of fact and conclusions of law that it deems relevant and 3

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 must

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

Filed: March 20, 2019 Do not publish