## 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-85,165-02

EX P ARTE ROY EUGENE USSERY, Appl icant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 941215-A IN THE 184TH DIS TRICT COURT

F ROM HARRIS 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 , 4 1 8 S
. W
. 2 d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burg lary of a building and se ntence d to eig hteen months’ imprisonment. He did not appe al his conviction. Applicant contends, among other things, that his plea was invo luntary beca use in cause number 955938, a companion case , he was improperly char g ed with and convicted of a third deg ree felony
. We set aside his c onviction in cause number 955938. Ex parte Ussery , No. WR -85,165-01 (Tex. Crim. App. J une 22, 2016) ( not desig nated f or publication). The trial court rec o m m en d ed that we dismiss or deny this application and found that2

Applicant wa s not confined f or purpose s of Article 11.07 and that Applica nt’s claims wer e bar

red by the doctrine of lac hes. We believe that the re cord should be f urther de veloped. Applicant has a lleg ed fa cts that, if true, mig ht entitle him to relief
. In these circumstance s, additional fac ts are neede d. As we held in Ex parte Rodrigu ez , 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 State and trial counsel to respond to Applicant’ s claim. 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 f t he trial court elects t o h o l d a hearing , it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wishes to be repr esente d by counsel, the t ri al court shall appoint an attorney to repre sent him at the hea ring . T E X . C O D E C R I M . P R O C . art. 26.04. The t ri al co u rt shall first make finding s of fac t and conclusions of law as to whether Applicant’s pleas in the prese nt c ase and cause number 955938 wer e part of a “pac kag e deal.” See Ex parte Cox , 482 S.W .3d 112 (Tex. Crim. App. 2016). The trial court shall then make finding s and conclusions as to whether Applicant’s plea in the prese nt case was involuntary beca use he was improperly char g ed with and convicted of a third degree felony in c ause number 955938. The trial court shall also make any other findings of fac t and co n cl u s i o n s o f law that it deems relevant and appropr iate to the disposition of Applicant’s cla ims for habe as cor pus relief
. This application 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 order
. A supp l em en tal transcr ipt containing 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, alongwith the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwa rded to this Court within 120 day s of the date of this order
. Any extensions of time must be3

reque sted by

the trial cour

t and shall be obtaine d from this Court.

Filed: Fe bruar

y 27, 2019 Do not publish