Villegas, Ex Parte Carlos Alejandro

• Court: Court of Criminal Appeals of Texas
• Decided: February 22, 2012
• Docket: AP-76,729
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-76,729 EX PARTE CARLOS A. VILLEGAS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F-0622654-P IN THE 203^RD DISTRICT COURT

FROM DALLAS 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty and was convicted of possession with intent to deliver over 400 grams of cocaine. The trial court sentenced Applicant to twenty years' imprisonment. On appeal, Applicant raised a claim of cruel and unusual punishment and the Fifth Court of Appeals affirmed his conviction. Villegas v. State, No. 05-07-00294-CR (Tex. App.-Dallas, Nov. 27, 2007, pet. ref'd).

Applicant contends that his sentence is illegal because it does not contain a fine, which is mandated under the statute. Tex. Health & Safety Code §481.112(f). We order that this application be filed and set for submission to determine whether: (1) the fine listed under Texas Health and Safety Code Section 481.112(f) is mandatory; (2) a claim that a mandatory fine was not assessed and therefore a sentence is illegal is properly raised for the first time on a writ of habeas corpus; and (3) if such a claim can be raised for the first time on habeas, and if it is meritorious, what the proper remedy for such a claim would be. The parties shall brief these issues. Oral argument is permitted.

The trial court shall determine whether Applicant is indigent. If Applicant is indigent and desires to be represented by counsel, the trial court shall appoint an attorney to represent Applicant. Tex. Code Crim. Proc. art 26.04. The trial court shall send to this Court, within 30 days of the date of this order, a supplemental transcript containing either the order appointing counsel or a statement that Applicant is not indigent. All briefs shall be filed with this Court within 60 days of the date of his order.

Filed: February 22, 2012

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