EX PARTE BENNY SARMIENTO (other)

OF TEXAS

NO. WR-17,019-02

EX PARTE BENNY SARMIENTO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 13,384-CR-A IN THE 349th DISTRICT COURT

FROM HOUSTON 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 was convicted of aggravated assault on a correctional officer and sentenced to three years imprisonment. He did not appeal his conviction.

Applicant contends that his sentence has discharged and that he is being illegally confined.

This Court remanded this cause to the trial court so that it could obtain an affidavit from the Texas Department of Criminal Justice addressing these claims. After obtaining the initial affidavit from TDCJ officials, the trial court entered findings of fact and conclusions of law that the Applicant had not discharged his sentence and he was not being illegally confined. Subsequent to the trial court s entrance of its findings of fact and conclusions of law, TDCJ officials forwarded a supplemental affidavit to the trial court that appears to be in conflict with its initial affidavit.

Affidavit number one states that the Applicant was not released to mandatory supervision on June 9, 2004, because he had not yet begun to serve the sentence in this cause. Affidavit number two states that Applicant s cumulated sentences // are being treated as one sentence under this Court s holding in Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008), and the Applicant was released to mandatory supervision on June 28, 1999. These affidavits leave this Court with the following questions:

If the Applicant was not eligible for release to mandatory supervision in this cause on June 9, 2004, because he had not yet begun serving his sentence, how was he eligible for release to mandatory supervision on June 28, 1999?

If the Applicant is not eligible for release to mandatory supervision in this cause, why was he released to mandatory supervision? //

The trial court shall order the Texas Department of Criminal Justice s Office of the General Counsel to file a supplemental affidavit addressing these questions. The Office of General Counsel shall also state how Applicant s discharge date is being calculated. The trial court may also order depositions, interrogatories or a hearing.

Applicant appears to be represented by counsel. If he is not and 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make additional findings of fact as to whether Applicant s sentence has discharged and whether he is being illegally confined. 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 60 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 90 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: January 27, 2010

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