EX PARTE RUDY LOPEZ (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,586-01

EX PARTE RUDY LOPEZ, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. F91-44984-R IN THE 265TH 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 was convicted of aggravated sexual assault and sentenced to life imprisonment. The Fifth Court of Appeals affirmed his conviction. Lopez v. State, No. 05-93-01706-CR (Tex. App.-Dallas, July 28, 1994, no pet.).

Applicant pleaded guilty and was placed on deferred adjudication probation. After violating a condition of probation, he was adjudicated guilty and sentenced to life imprisonment. He contends that he was denied due process because his sentence was prejudged. See Ex parte Brown, 158 S.W.3d 449 (Tex. Crim. App. 2005). The trial court has entered findings of fact and conclusions of law and recommended that we deny relief. We believe, however, that the record is not sufficient to resolve Applicant's claim. Accordingly, the trial court shall determine whether there is evidence in the reporter's record indicating that the trial judge stated that he would sentence Applicant to life if he violated a condition of probation. If there is such evidence in the reporter's record, the trial court shall also obtain an affidavit from the trial judge.

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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall then make further findings of fact as to whether Applicant was denied due process because his sentence was prejudged. 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: October 1, 2008

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