Ex parte Robert Murrell BURTON
No. 68016
Court of Criminal Appeals of Texas, En Banc
Nov. 10, 1981
622 S.W.2d 583
The judgment is affirmed.
ONION, P. J., and CLINTON, J., dissent.
TEAGUE, J., not participating.
Robert Huttash, State‘s Atty., Austin, for the State.
OPINION
TOM G. DAVIS, Judge.
This is a post-conviction aрplication for writ of habeas corpus filed pursuant to
The record reflects that on June 27, 1980, petitioner was convicted following his plea оf guilty of burglary of a habitation. Punishment was assessed at five years and it is expressly provided that such term is “to run
Petitioner maintains his plea of guilty was involuntary because it was induced by a plea bargain, the conditiоns of which were impossible to perform. Following an evidentiary hearing, the trial court entered the following findings:
- The defendant was induced to enter into thе plea bargain by good faith representations that he would receive credit on his federal sentence while in State custody.
- He would not have entered into the plea bargain had such representation not been made.
Under the provisions of
“The decision of whether a federal parole violator will actually serve a second sentence concurrently with the remainder of the sentence paroled is a matter exclusively within the province of the Parole Cоmmission. Zerbst v. Kidwell, 304 U.S. 359, 362-63, 58 S.Ct. 872, 874, 82 L.Ed. 1399 (1938). The second sentencing judge, state or federal, may not interfere with that discretion. The discretion is essential to the authority of the Parole Cоmmission:
“‘Unless a parole violator can be required to serve some time in prison in addition to that imposed for an offense committed while on parole, he not only escapes punishment for the unexpired portion of his original sentence, but the disciplinary power of the Board will be рractically nullified.’
”Zerbst v. Kidwell, supra, 304 U.S. at 303, 58 S.Ct. at 874.” (Footnote omitted). Id. at 1034.
When a defendant enters a plea of guilty or nolo contendere pursuant to a plea bargain agreement, the State is bound to carry out its side of the bargain. DeRusse v. State, 579 S.W.2d 224 (Tex.Cr.App.). If the prosecution does not live up to its part of a plea bargain and such bargain was used as an inducеment for the guilty plea, doubt is raised as to whether a guilty plea under such circumstance can be regarded as truly voluntary. Bass v. State, 576 S.W.2d 400 (Tex.Cr.App.). The appropriatе relief for the failure to keep a plea bargain is either specific enforcement of the agreement or withdrawal of the pleа, depending upon the circumstances of each case. Joiner v. State, 578 S.W.2d 739 (Tex.Cr.App.).
In the instant cause, petitioner was induced to enter a plea of guilty based uрon a representation that he would receive credit upon his federal sentence while in state custody. He is not receiving such credit at thе present time. We decline petitioner‘s request to order specific enforcement of the plea bargain. To do so would interfere with the discretion exclusively within the province of the United States Parole Commission. The plea bargain having not been kept and specific enforсement not being appropriate, we find that petitioner‘s plea of guilty was not voluntarily entered and that he is entitled to withdraw the plea.
The rеlief sought is granted. Petitioner is ordered remanded to the Sheriff of Hale County to answer the indictment in Cause
It is so ordered.
McCORMICK, J., concurs in results.
TEAGUE, J., not participating.
CLINTON, Judge, concurring.
With deference, I suggest both the habeas court below and this Court have misinterpreted the terms of a plea bargain, which all concede was made.1 Petitioner states under oath that the bargain was to be effectuated by releasing him into federal custody. A purported copy of a letter from his appointed attorney to the affected federal probation officer confirms that understanding.2
Both the judgment and sentence make cleаr that the five year sentence imposed by the state court was “to run concurrent with” the four year sentence levied by the federal court. The decisions examined by the Court establish that petitioner is not receiving and may not receive credit on his federal sentence while actually cоnfined by Texas to serve the state sentence. Thus, it is his present incarceration which violates the plea bargain.
The Court declines to “order specific enforcement of the plea bargain” it understands was made, desiring not to “interfere with the discretion exclusively within the province of the United States Parole Commission.” However, the federal detainer lodged with the Texas Department of Corrections against petitioner reflects а request by the United States Marshal for the Southern District of Texas in Houston—not too many miles away—that a TDC official notify his office when petitioner is to be released from custody “so that we may assume custody if necessary.” Obviously, then, the federal authorities are standing by, so to speak, waiting for Texas officials; just as patently this Court has the power and authority in a post-conviction habeas corpus proceeding to order that petitionеr be released from what is found to be illegal confinement by TDC. The natural consequence would be implementation of the federal detainer by thе United States Marshal taking custody of petitioner. Such an order would not “interfere with the discretion” of the Parole Commission—it may impel the Commission to еxercise that discretion, however.
Nevertheless, with the Court taking the plea bargain reported by the habeas judge and finding that one is not enforceable, as indeed it is not, the relief granted by the Court will permit the matter to be sorted out at the trial level. On that basis I reluctantly concur in the order of the Court.