Alvarez, Ernesto Garcia

• Court: Court of Criminal Appeals of Texas
• Decided: September 26, 2018
• Docket: WR-77,231-10
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-77,231-10

EX PARTE ERNESTO GARCIA ALVAREZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 27518 D IN THE 18 TH DISTRICT COURT FROM JOHNSON COUNTY

Per curiam.

ORDER

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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of the offense of

murder and sentenced to twenty-five years imprisonment.

In March of 1990, after his initial judgment of conviction was reversed on appeal, Applicant

plead guilty to committing murder and pursuant to a plea agreement was re-sentenced to twenty-five

years imprisonment in the Texas Department of Criminal Justice (TDCJ). He was later convicted

of felony assault and sentenced to a concurrent term of ten years imprisonment. 2

Applicant claims that he has discharged this sentence, having previously been released to

mandatory supervision, and “is illegally still restrained from his liberty and freedom.” Habeas

Record 24. He argues that prison officials must release him to non-discretionary mandatory

supervision on the twenty-five-year murder sentence imposed in 1990. Applicant also contends that

TDCJ is not properly applying pre-sentence confinement credit, specifically 629 days, which were

awarded as “time credited” on the judgment.

We ordered that this application “be filed and set for submission to examine the legality of

the policy, as applied to Applicant, of not ‘releasing’ a prisoner to mandatory supervision on one

concurrent sentence until the prisoner is ‘eligible’ for release on all concurrent sentences and whether

this Court’s decisions in Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008), and Ex parte

Williams, 257 S.W.3d 711 (Tex. Crim. App. 2008), are applicable.” The parties and the Office of

General Counsel of TDCJ were invited to brief the issues and have done so. Subsequently, the writ

application was so submitted to this Court.

After submission, it has come to our attention that Applicant may no longer be in custody and

may have been released from custody shortly before such submission. We observe that the state’s

“Respondent’s Original Answer” to the application refers to the “attached sworn affidavit” of

Charley Valdez, a program supervisor for the Classification and Record Division of TDCJ-ID.

Habeas Record 48. We also observe that the habeas court’s Order transmitting the habeas record to

this Court also refers to reviewing documents, including “Mr. Charley Valdez’s sworn affidavit.”

Habeas Record 51. However, no such affidavit appears in the habeas record.

We abate these proceedings and remand to the habeas court with instructions to supplement

the record with that referenced affidavit from Charley Valdez and with any additional evidence 3

which it determines is relevant to our resolution of Applicant’s claims. The parties are also ordered

to determine Applicant’s current custodial status and present evidence regarding such status to the

habeas court. The habeas court shall make any findings of fact and conclusions of law that it deems

relevant and appropriate to the disposition of Applicant’s claims.

This application will be held in abeyance until the habeas court so supplements the record.

Said supplementation shall be returned to this Court within 45 days of the date of this order. Any

extensions of time must be requested by the habeas court and shall be obtained from this Court.

Filed: September 26, 2018 Do not publish