## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-36,264-02

EX P ARTE ST EVEN MCG EE, App licant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 01-0011X(A ) IN THE 71ST DISTRICT COURT

F ROM HARRISON COUNTY
Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal 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 pleade d g uilty to one count of indece ncy with a child by contac t, a nd one count of sexual a ssault of a child, and was sentenc ed to fiftee n y ear s’ imprisonment for the indece ncy count, and twenty y ear s’ imprisonment for the sexual assault count. He did not appeal his convic tion. Applicant contends, among other things, that his plea ag ree ment was brea ched beca use the ag ree ment called for concur rent sentences an d the oral pronounce ment called for concur rent sentenc es for the two counts. Howeve r, the written judgme nt indicates that the sentenc es are to run2

consec utively
. Applicant prese nts evidenc e that TDCJ was treating the sentenc es as concur rent until 2018, when a “cor

rect i o n ” was enter ed and the sentenc es wer e re- calc ulated as consec utive. Applicant also alleg es that his parole elig ibilit y date was miscalculate d beca use when his sentenc es
wer e beingtreated as c oncurr ent his parole e ligibility date was based on the twenty -y ear sentenc e,
as opposed to be ing based on the fiftee n-y ear sentenc e as it would have been if the sentenc es wer e considere d consec utive. Applicant has alleg ed fac ts that, if true, might entitle him to relief
. I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court shall order the Texas Depa rtment of Criminal J ustice’s Offic e of the Gene ral C o u n s el t o file an aff idavit listi ng Applicant’s sentenc e beg in date for eac h of the counts to which he pleade d g uilty
. The aff idavit shall state whether Applicant’s sentenc es wer e orig inally considere d to be concur rent, and if they wer e rec alculate d as consec utive, the aff idavit shall state when and why that chang e was made. The aff

idavit shall state how Applicant’s parole elig ibilit y date( s) wer e calc ulated, and when, if ever , Applicant was ever approve d for parole rele ase. 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). I n the appropr iate case , the trial court may rely on its persona l rec ollection. Id
. I f the trial court elec ts to hold a hea ring , it shall determine whe ther Applica nt is indi g ent. I f Applicant is indige nt and wishes t o b e represente d 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 a nd conclusions of law in reg ard to Applicant’s claims that his plea ag ree ment was brea ched and his parole elig ibilit y date miscalculate d. The trial
co u rt s h al l als o make any other findings of fac t and conclusions of l aw that it deems relevant and3

appropr iate to the disposition of Applicant’s cla im for habe as cor pus relief
. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order
. A supplem en t al t ra n s cript containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing 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 the date of this order. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Mar ch 20, 2019 Do not publish