Martinez, Ernest

• Court: Court of Criminal Appeals of Texas
• Decided: June 24, 2009
• Docket: WR-72,063-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-72,063-01 EX PARTE ERNEST MARTINEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 2033901-A IN THE 331ST DISTRICT COURT

FROM TRAVIS 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 habitation and sentenced to three (3) years' imprisonment. He did not appeal his conviction.

Applicant contends that his plea was involuntary because the plea agreement cannot be followed. Specifically, he alleges that counsel reached an agreement with the State that this sentence would run concurrently with a federal sentence. He alleges that the trial judge imposed concurrent state and federal sentences in accordance with the agreement, but that the federal authorities have failed to comply with the trial judge's order.

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) to resolve the fact issues. In the appropriate case, the trial court may rely on its personal recollection. Id. The trial court shall order counsel to file an affidavit addressing: (1) whether the promise of concurrent state and federal sentences was part of the plea agreement underlying Applicant's initial guilty plea; (2) whether the promise of concurrent state and federal sentences was part of the plea agreement underlying Applicant's decision to plead true to the allegations in the State's motion to revoke; and, (3) whether the trial judge ordered that this sentence run concurrently with a federal sentence. Also, the trial court shall instruct the clerk to supplement the record with copies of any written plea bargain agreement(s) and the transcription of the court reporter's notes from the plea hearing and the sentencing proceeding.

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 make findings of fact as to whether Applicant plead guilty pursuant to an agreement that this sentence would run concurrently with a federal sentence. Specifically, the trial judge shall make findings of fact as to whether concurrent state and federal sentences was part of the written plea agreement in this case. The trial judge shall also make findings of fact as to whether the trial judge imposed concurrent state and federal sentences at the sentencing proceeding. 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: June 24, 2009

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