Trevino, Richard Lee

• Court: Court of Criminal Appeals of Texas
• Decided: May 25, 2011
• Docket: WR-75,807-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,807-01 EX PARTE RICHARD LEE TREVINO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B09-474 IN THE 198^TH DISTRICT COURT

FROM KERR 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 unauthorized use of a motor vehicle and sentenced to two years' imprisonment in state jail. He did not appeal his conviction.

Applicant contends that his plea was breached because he pleaded guilty in exchange for 334 days of pre-sentence jail time credit, which was reflected on the original judgment, but that number was changed to 40 days through a judgment nunc pro tunc four days after his plea. Applicant has alleged facts that, if true, might entitle him to relief. 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). The trial court may order the State to provide an affidavit stating the exact terms of the plea agreement.

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 and conclusions of law in regard to Applicant's claim that his plea bargain was breached. The trial court shall make findings as to whether a specific number of days of pre-sentence jail time credit was a part of the plea bargain, and if so, exactly how much time was promised to Applicant. The trial court shall supplement the record with any written plea bargain that may have been signed by the parties. 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. Applicant is scheduled for the full discharge of his sentence on August 5, 2011. This application is therefore expedited and all responses, supplemental records, and findings shall be submitted to this Court no later than June 10, 2011.

Filed: May 25, 2011

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