EX PARTE MARK RUSSELL MCKEE (other)

IN THE COURT OF CRIMINAL APPEALS 
OF TEXAS 

NO. WR-72,214-01
EX PARTE MARK RUSSELL MCKEE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. C-34,147 IN THE 244TH DISTRICT COURT 
FROM ECTOR 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 this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burglary of a habitation and sentenced to ten years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement was not followed. He alleges that he pleaded guilty with the understanding that this sentence would be running concurrently with a federal sentence. He has since learned that the federal authorities are allowing him to serve his Texas sentence before taking him into federal custody.

Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, 3(d).

If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall supplement the writ record with a copy of the reporter's record from Applicant's plea hearing and with any other plea documents in the trial record. The trial court shall make findings of fact as to whether Applicant plead guilty pursuant to an agreement that this sentence would run concurrently with a federal sentence. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: August 26, 2009

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