




 





IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-64,117-01


EX PARTE BENJAMIN COZELLE DUNN, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS 
FROM CAUSE NO. 10,178 IN THE 32ND JUDICIAL DISTRICT COURT OF
NOLAN COUNTY


 Per curiam.

 O R D E R


	This is an application for a writ of habeas corpus which was transmitted to this Court 
pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07.  Applicant pleaded guilty
to the offense of forgery, and punishment was assessed at fifteen months' state jail
confinement.  No direct appeal was taken.
	Applicant contends that his plea was not knowingly and voluntarily entered because
he pleaded guilty with the understanding that this sentence would run concurrently with his
other state and federal sentences.  He also alleges that the judgment was not properly
executed, because he was returned to state custody rather than being allowed to finish serving
his federal sentence.
	The trial court has not entered findings of fact or conclusions of law.  We believe that
Applicant has alleged facts that, if true, might entitle him to relief.  Therefore, it is this
Court's opinion that additional facts need to be developed and because this Court cannot hear
evidence, the trial court is the appropriate forum.  The trial court may resolve those issues
as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits,
depositions, or interrogatories from counsel, or it may order a hearing.  In the appropriate
case the trial court may rely on its personal recollection.  
	If the trial court elects to hold a hearing, the court shall first decide whether Applicant
is indigent.  If the trial court finds that Applicant is indigent and Applicant desires to be
represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code
Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.  
	Following receipt of additional information, the trial court shall make findings of fact
as to whether it was an express condition of Applicant's plea that the sentence in this cause
would run concurrently with Applicant's other state and federal sentences.  If so, the trial
court shall make findings as to whether Applicant would have pleaded guilty absent such a
condition.  The trial court shall also make any further findings of fact and conclusions of law
it deems relevant and appropriate to the disposition of the application for writ of habeas
corpus. 
	Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.
Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held
in abeyance pending the trial court's compliance with this order.  Resolution of the issues
shall be accomplished by the trial court within ninety days of the date of this order. (1)  A
supplemental transcript containing all affidavits and interrogatories or the transcription of the
court reporter's notes from any hearing or deposition, and copies of any plea agreement or
other documents forming the basis for Applicant's plea, along with the trial court's
supplemental findings of fact and conclusions of law, shall be returned to this Court within
one hundred and twenty days of the date of this order. (2)
 IT IS SO ORDERED THIS THE 8th  DAY OF March, 2006.


EN BANC
DO NOT PUBLISH  

1.   In the event any continuances are granted, copies of the order granting the continuance
shall be provided to this Court.
2.   Any extensions of this time period shall be obtained from this Court.
