              IN THE COURT OF CRIMINAL APPEALS
                          OF TEXAS
                                         NO. WR-82,533-03


                        EX PARTE RICHARD MCDONALD, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 12F0409-005-A IN THE 5TH DISTRICT COURT
                              FROM BOWIE COUNTY


      Per curiam. Richardson, J., filed a concurring and dissenting opinion, in which
Johnson and Alcala, J.J., joined.

                                            OPINION

        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 originally pleaded guilty in a single

proceeding to one charge of assault and one charge of forgery in exchange for deferred adjudication

community supervision. His guilt was later adjudicated and he was sentenced pursuant to an

agreement to ten years’ imprisonment in this case, to run concurrently with a twelve-year sentence

in the assault case. He did not appeal his convictions.

        Pursuant to a previous habeas application filed in the assault case, this Court determined that
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Applicant’s plea in that case was involuntary and the plea agreement unenforceable, because

Applicant had pleaded to an offense that does not exist under Texas law. This Court set aside the

judgment in the assault case and remanded Applicant to the custody of the Sheriff of Bowie County

to answer the charges. Applicant pleaded guilty to misdemeanor assault in exchange for time served.

       Applicant now contends that his plea in the forgery case was involuntary because it was part

of the same plea as the invalidated assault charge. Applicant alleges that he would not have pleaded

“true” in exchange for the maximum sentence for forgery had he not been advised that his sentence

would be subsumed by the sentence in the assault case and that he could receive a twenty-year

sentence in the assault case if he did not plead pursuant to the agreement at adjudication.

       Trial counsel filed an affidavit with the trial court. Based on that affidavit and the record,

the trial court has determined that Applicant’s plea in the forgery case was part of the same plea

agreement as his plea in the assault case, which was determined to be an involuntary plea, and that

Applicant should be granted relief in the forgery case. Ex parte Huerta, 692 S.W.2d 681 (Tex.

Crim. App. 1985).

       The trial court’s findings of fact, conclusions of law and recommendation are supported by

the record as to Applicant’s plea of “true” at adjudication. Applicant has established that he would

not have pleaded “true” in exchange for the maximum sentence in this case had he known that the

assault charge was invalid. However, he has not demonstrated that he would not have pleaded guilty

to this charge in exchange for deferred adjudication community supervision but for later-invalidated

assault charge.

       Relief is granted. The judgment adjudicating guilt in Cause No. 12F0409-005 in the 5th

District Court of Bowie County is set aside, and Applicant is remanded to the custody of the Sheriff
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of Bowie County to answer the allegations in the motion to proceed to adjudication. The trial court

shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

       Copies of this opinion shall be sent to the Texas Department of Criminal Justice–Correctional

Institutions Division and Pardons and Paroles Division.



Delivered: June 22, 2016
Do not publish
