## IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-83,764-01 and -02 EX PARTE KELVIN GRANT ALEXANDER, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS CAUSE NOS. 07-02-0168 3 -CR (1) AND 07-08-08026-CR (1) IN THE 359th DISTRICT COURT FROM MONTGOMERY COUNTY

Per curiam . O R D E R 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 a writ of habeas corpus. Ex parte Young , 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated robbery and possession of a controlled substance and he was sentenced to twenty-seven years’ and five years’ imprisonment, respectively. The Ninth Court of Appeals affirmed his convictions. Alexander v. State , Nos. 09-08-00372-CR and 09-08-00373-CR (Tex. App.—Beaumont December 9, 2009) (not designated for publication). Applicant contends, inter alia , that his trial counsel rendered ineffective assistance because2

he fa iled to object to the trial cour t’s order to cumulate the se ntence s in these ca ses. The trial court has deter

mined that, beca

use the Applicant’s convictions did not arise out of the same criminal episode, the cumulation order did not violate T E X . P E N A L C O D E § 3.03 (a)

. We 1 disag ree . The trial court’s rec ommendation to deny relief is not supported by the rec ord. The State responds a s follows in its footnot e 1:

Given the State’s position at trial, it is arguably estopped from claiming in t h is proce eding that the applicant’ s two convictions did not arise out of the s am e criminal episode. See Hall v. State , 283 S.W .3d 137, 156 (Tex. App.—Austin 2009, pet. ref ’d) (“Judicial estoppel prohibits a party who has taken a position in an ear lier proce edingfrom subseque ntly taking a contr ary

position.”). I n addition, the State does not dispute the Applicant’s alleg ation it argued at trial the purpose of Applicant’s commission of the ag g ravated robber y was to obta in mone y to buy the illicit narc otics in que stion. The rec ord befor e us indicates the Applicant’s commission of the ag g ravated robber y and his p o s s es s i on of illicit narc otics wer e part of the same criminal episode and the trial court’s entry of the cumulation order was most likely prohibited by § 3.03(a)

. Howeve r, the rec ord does not contain an aff

idavit from trial counsel addre ssing Applicant’s claim of ineffe ctive assistance in these

case s. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Strickland v. W

ashington , 466 U.S. 668 (1984); Ex parte Patterson , 993 S.W .2d 114, 115 (Tex. Crim. App. 1999). In these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 Subsection (a) of the statute state s: 1 When the acc used is found guilty of more tha

n one off ense a rising out of the same c riminal episode prose cuted in a sing le cr iminal action, a sentenc e for

eac h offe nse for

which he ha s been f

ound g uilty

shall be pronounce d. Ex cept a s provided by Subsection (b), the se ntence s shall run concur rently

.3

(Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court shall order trial counsel to respond to Applicant’ s cl ai m of i neff ective assistance of counsel. The trial court may use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). In the appropr iate ca se, the trial c ourt may rely on its personal re collection. Id

. I f the trial c ourt elec ts to hold a hearing , it sha ll de termine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr es en t ed by counsel, the trial court shall appoint an attorney to repre sent Applicant at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make finding s of fac t and conclusion s o f l aw as to whether the perf ormanc e of App l i ca n t’s trial counsel was defic ient and, if so, whether counsel’s defic ient perf ormanc e prejudice d Applicant. The trial court shall also make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief. These applications will be held in abeyance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this orde r. A supplemental transcript c ontaining all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of t he date of t his order

. Any extensions of ti me shall be obtained f

rom this Court.

Filed: Oc tober 7, 2015 Do not publish