EX PARTE DERLIO TREVINO, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. WR-76,159-02
EX PARTE DERLIO TREVINO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 01-CR-239-A IN THE 381ST JUDICIAL DISTRICT COURT
FROM STARR 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 pleaded guilty to failure to appear and was sentenced to five years' imprisonment. The trial court ordered this sentence to run consecutively with a ten-year sentence for attempted sexual assault of a child in another case.

Applicant contends that the cumulation order in this case was improper, because the ten-year sentence in the attempted sexual assault case was not pronounced or imposed until two days after the sentence in this case with the cumulation order was pronounced.

Applicant has alleged facts that, if true, might entitle him to relief. However, the habeas record does not show whether Applicant's plea in this case was an open plea, or if it was entered pursuant to a plea agreement. If Applicant entered an open plea in this case and did not expressly waive his right to appeal, then his claim of improper cumulation of sentences could have been raised on direct appeal. "The Great Writ should not be used in matters that should have been raised on appeal."

Ex parte Townsend, 137 S.W.3d 79, 81 (Tex. Crim. App. 2004).

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). 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 supplement the habeas record with copies of the plea papers, including any written plea agreement if such an agreement existed. If Applicant signed a waiver of appeal in this case, the trial court shall supplement the habeas record with a copy of such waiver. The trial court shall make findings of fact as to whether Applicant plead guilty pursuant to a plea agreement, or whether he entered an open plea in this case. The trial court shall make findings as to whether Applicant had any right to appeal in this case, and if so, whether his current claim could have been raised on direct appeal. 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. 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 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

 

Filed: November 2, 2011

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