EX PARTE MARTIN GARCIA (other)

Texas Judiciary Online - HTML Opinion     Close This Window

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-70,571-01

EX PARTE MARTIN GARCIA, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 05-11-10,669-CR-1 IN THE 38TH DISTRICT COURT

FROM UVALDE 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 was convicted of felony driving while intoxicated and sentenced to five (5) years' imprisonment.

Applicant contends that the Texas Department of Criminal Justice (TDCJ) is designating him as ineligible for mandatory supervision release because of a prior third-degree aggravated assault conviction even though that offense is not included on the applicable list of enumerated offenses. Tex. Gov't Code, § 508.149(a)(6), (West, 2003). Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Hall, 995 S.W.2d 151 (Tex. Crim. App. 1999). 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 that it shall order the General Counsel's Office of the TDCJ to file an affidavit addressing whether Applicant is designated as eligible for mandatory supervision release and, if not, shall specify the reason why Applicant is not designated as eligible for mandatory supervision release. The affidavit shall state whether Applicant has been convicted of any offense which makes him ineligible for mandatory supervision release under Tex. Gov't Code § 508.149 and, if so, shall identify such offenses. The record contains an ambiguity as to whether the 1990 third-degree aggravated assault conviction has become a final felony conviction. The trial judge shall supplement the record with information clarifying whether said conviction has become a final felony conviction. The trial court may also order depositions, interrogatories or a hearing. 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. C ode Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether the TDCJ has designated Applicant as eligible for mandatory supervision release and, if not, as to why Applicant is not designated as eligible for mandatory supervision release. The trial court shall make findings of fact as to whether Applicant has been convicted of any offense which makes him ineligible for mandatory supervision release under Tex. Gov't Code § 508.149 and, if so, shall identify such offenses. The trial judge shall make findings of fact as to whether the 1990 third-degree aggravated assault conviction is a final felony conviction. 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 29, 2008

Do not publish