Richardson, Ex Parte Alan Lynn

• Court: Court of Criminal Appeals of Texas
• Decided: April 5, 2006
• Docket: AP-74,824
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-74,824 EX PARTE ALAN LYNN RICHARDSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

IN CAUSE NO. 25177 FROM THE 13^TH DISTRICT COURT

NAVARRO COUNTY

Per curiam.

ORDER

Applicant was placed on probation, which was later revoked. In an application for writ of habeas corpus, he complains that the trial judge was disqualified from hearing the revocation proceedings because he was the prosecutor in the original criminal proceedings from which applicant's probation arose. In its conclusions of law, the trial court says, among other things, that applicant's attorneys advised him "that there had been a plea negotiated where he would receive a lesser sentence with the negotiated plea agreement." Relying upon "Exhibits 3 & 4," the trial court further states that applicant, "after being so advised, entered his plea freely and voluntarily." "Exhibits 3 & 4," presumably the attorneys' affidavits, are not included in the habeas record forwarded to this Court. We believe these exhibits may be important to the resolution of this case.

We also point out that in Gutierrez v. State, 108 S.W.2d 304, 309 (Tex. Crim. App. 2003), we held that, "in the context of revocation proceedings, the legislature has not authorized binding plea agreements." At this stage, the nature of the "plea agreement" is not clear to this Court, but we think the nature of this agreement, including the stage of proceedings to which it applied and whether it encompassed other prosecutions may be important to the resolution of the case.

Because this Court does not gather evidence, the trial court is the appropriate forum for these matters. Consequently, we remand this case with instructions. If the exhibits three and four, cited in the trial court's conclusions of law, are in the possession of the trial court or the clerk, we order that they be forwarded to this Court, or if not, that new exhibits be obtained, to the extent possible, from the same persons containing the same information. Further, if information regarding the nature of the plea agreement is not contained in these exhibits, then we order that the trial court obtain this information through whatever means it deems appropriate and forward that information to this Court within ninety days from the date of this Order.

DELIVERED: April 5, 2006

DO NOT PUBLISH