## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-82,533-03

EX P ARTE RICHARD M CDONALD, Applicant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 12F 0409-005-A IN THE 5T H DISTRICT COURT

F ROM BOWIE COUNTY

Per curiam . Richardson , J., filed a concurring an d dissentin g opinion , in w hich Johns on and A lcala, J.J., joined. O P I N I O N Pursuant to the provisions of Article 11.07 of the Texas Co d e o f C ri m inal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W .2d 824, 826 (Tex. Crim. App. 1967). Applicant orig inally pleade d g uilty in a single proce eding to one char g e of assault and one char g e of forg ery in exchang e for defe rre d adjudication community supervision. Hi s gu i l t was later adjudicate d and he was sentenc ed pursuant to an ag ree ment to ten y ear s’ imprisonment in this case , to r un concur rently with a twelve- y ear sentenc e in the assault ca se. He did not appeal his convic tions. Pursuant to a previous habea s application filed in the assault case , this Court deter mined that2

Applicant’s plea in that case was involuntary and the plea ag ree ment unenfor cea ble, beca use Applicant had ple aded to an offense that does not exis t under Te x as law. This Court set aside the judgme nt in the assault case and rema nded Applicant to the custody of the Sheriff of Bow ie County to a n swer the char g es. Applicant pleade d g uilty to misdemeanor assault in exchang e for time serve d. Applicant now contends that his plea in the forg ery case was involuntary beca use it was part of the same plea as the invalidated assault char g e. Applicant alleg es that he would not have pleade d “true ” in exchang e for the maxi mum sentenc e for forg ery had he not been advised that his sentenc e woul d b e s u b s u med by the sentenc e in the assault case and that he could rec eive a twenty -y ear sentenc e in the assa

ult case if he did not plead pursuant to the a g ree ment at adjudication. Trial counsel filed an aff

i d avit with the t rial court. Ba sed on that aff idavit and the rec ord, the trial court has deter

mined that Applicant’s plea i n t h e forg ery case was part of the same plea ag ree ment as his plea in the assault case , which was deter mined to be an involuntary plea, and that Applicant should be g rante d relief in the forg ery case . Ex parte Huer t a , 692 S.W .2d 681 (Tex. Crim. App. 1985). The trial court’s finding s of fac t, conclusions of law and rec ommendation are supported by the rec ord as to Applicant’s plea of “true ” at adjudication. Applicant has established that he would not have pleade d “true ” in e x chang e for the maxi mum se ntence in this case had he known that the assault char g e was invalid. Howeve r, he has not demonstrated that he would not have pleade d g uilty to this charg e in exchang e for defe rre d adjudication community supervision but for later- invalidated assault cha

rg e. Relief is g rante d. The judgme nt adjudicating g uilt in Cause No. 12F0 4 09-005 in the 5th District Court of Bow ie County is set aside, and Applicant is rema nded to the custody of the Sheriff3

of Bow ie County to answe r the alleg ations in the motion to proce ed to adjudication. The trial court shall issue any

nece ssary

bench w arr ant within 10 day s after the mandate of this Court issues. Copies of this opinion shall be s e nt to th e T e xa s D e p a r tm e nt of Criminal J ustice–Corre ctional Institut ions Division and Pardons and Paroles Division.

Deliver ed: J une 22, 2016 Do not publish