EX PARTE PAUL JAMES GRUDZIEN v. << (2008)

CONCURRING STATEMENT

On August 31, 2005, we remanded this application to the trial court and directed it to determine whether applicant plead guilty to the offense of tampering with physical evidence believing, on the advice of counsel, that he could raise a claim of double jeopardy on direct appeal without first raising it in the trial court. Applicant's claim raised potential issues of both involuntary plea and ineffective assistance of counsel.

On remand, the trial court scheduled evidentiary hearings on October 26 and November 9, 2005, to determine whether counsel's advice to applicant was deficient. On January 3, 2006, this Court received findings of fact from the trial court stating that, on November 8, 2005, a representative of applicant's counsel contacted the trial court to request that the November 9 hearing be rescheduled. The findings also noted that, since November 8, 2005, neither the state nor applicant's counsel has contacted the trial court to reschedule the canceled hearing. Two subsequent sets of findings from the trial court are identical to the January 2006 findings. There is nothing in the findings or elsewhere in the record to indicate whether applicant consented to, or even knew of, his counsel's request to “reschedule” the hearing ordered by this Court on the issue of counsel's allegedly deficient representation.

According to the Texas Department of Criminal Justice–Classification and Records, applicant's sentence discharged on October 10, 2006. Accordingly, I must agree that his application should be dismissed, as this Court now lacks jurisdiction. However, I note that applicant has never had a hearing on his claim, here or in the trial court. I therefore believe that applicant may file a subsequent application for a writ of habeas corpus and, if he is able to sufficiently plead collateral consequences, this Court may then reach the merits of his claim. TEX. CODE CRIM. PROC. art. 11.07, § 3(c).

JOHNSON, J., filed a concurring statement.