Trevino, Sergio Louis

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-86,428-02

EX PARTE SERGIO LOUIS TREVINO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14-1951-CR-C-B IN THE 25TH DISTRICT COURT FROM GUADALUPE 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 originally charged with

continuous sexual abuse of a young child, but pleaded guilty to three counts of aggravated sexual

assault of a child, and two counts of indecency with a child by contact. He was sentenced to seventy

years for the aggravated sexual assault counts and fifteen years for the indecency counts, to be served

concurrently. He did not appeal his conviction. 2

Applicant contends, among other things,1 that his plea was involuntary because he was

advised by trial counsel and believed that he would be eligible for parole on any sentences he

received as a result of his plea in this case, whereas if he had pleaded guilty to or been convicted of

continuous sexual abuse of a young child, he would not have been eligible for parole pursuant to

Section 508.145(a) of the Texas Government Code. During the punishment hearing, the State argued

that but for the plea agreement in this case, Applicant would be ineligible for parole. The State

argued that Applicant had received the benefit of parole eligibility in exchange for his plea to the

lesser offenses.

Under Section 508.145(a) of the Texas Government Code, an inmate serving a sentence for

aggravated sexual assault punishable under Subsection (f) of Section 22.021 of the Texas Penal Code

is not eligible for release on parole. Subsection (f) applies if the victim of the offense was younger

than six years old at the time the offense was committed.

The State in its answer argues that none of the charges to which Applicant pleaded guilty

alleged that the victim was under six years old, and that there is no finding in the judgment that the

victim was under the age of six. The State argues that Applicant is not ineligible for parole pursuant

to Section 508.145(a) of the Texas Government Code. However, the judgment does, in fact contain

a notation that the age of the victim at the time of the offenses was four years old, and indicates that

the offense dates were “9/1/07 - 7/28/14.”2 The Texas Department of Criminal Justice’s offender

1 This Court has considered Applicant’s other claims and finds them to be without merit. 2 It is possible that the notations in the judgment were clerical errors, in which case they would be subject to correction by way of a judgment nunc pro tunc. If the trial court does determine that they are clerical errors and enters a judgment nunc pro tunc, copies of such judgment should be forwarded to this Court and to the Texas Department of Criminal Justice. 3

database indicates that Applicant is being treated as ineligible for parole for these sentences. If

Applicant pleaded guilty to these offenses after having been erroneously advised that he would be

eligible for parole as the record suggests, then such erroneous advice may have rendered his guilty

pleas involuntary. See Ex parte Moussazadeh, 361 S.W.3d 684 (Tex. Crim. App. 2012).

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. 1960), 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). In the appropriate case, the trial court

may rely on its personal recollection. Id.

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 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

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 must

be requested by the trial court and shall be obtained from this Court. 4

Filed: December 5, 2018 Do not publish