Mielnicki, Robert David

• Court: Court of Criminal Appeals of Texas
• Decided: February 25, 2015
• Docket: WR-81,875-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-81,875-01

EX PARTE ROBERT DAVID MIELNICKI, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1230331D IN THE 371ST DISTRICT COURT FROM TARRANT 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 robbery and

sentenced to fifteen years’ imprisonment. He did not appeal his conviction.

In a single ground, Applicant contends that he pleaded guilty on the condition that his

sentence would run concurrently with a federal sentence. The trial court adopted the State’s

proposed findings of fact and conclusions of law and recommended that we set aside Applicant’s

conviction. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985). On September 17, 2014, we 2

remanded this application and directed the trial court to determine whether concurrent sentences was

a condition of the plea agreement. On remand, after holding an evidentiary hearing, the trial court

found that Applicant entered into a plea agreement with the State with the understanding that his

sentence would run concurrently with any federal sentence. The trial court again recommended that

we set aside Applicant’s conviction.

We believe that the record should be further developed. On remand, counsel testified at the

evidentiary hearing that he told Applicant, “[A]lthough I couldn’t guarantee the federal court would

run it [any federal sentence] concurrently, I could tell him that the judge here would order the state

sentence to run concurrently with any federal sentence.” In these circumstances, additional facts are

needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial

court is the appropriate forum for findings of fact.

Applicant appears to be represented by counsel. If he is not and the trial court elects to hold

a hearing, it shall determine whether he is indigent. If he is indigent and wishes to be represented

by counsel, the trial court shall appoint an attorney to represent him at the hearing. TEX . CODE CRIM .

PROC. art. 26.04.

The trial court shall make further findings and conclusions and determine whether counsel’s

testimony above is credible and whether Applicant, having been advised by counsel that his

sentences might not run concurrently, has established that his guilty plea was involuntary. 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. A supplemental transcript containing all 3

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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall

be obtained from this Court.

Filed: February 25, 2015 Do not publish