Ex Parte Huerta

332, 608, (1943), U.S. S.Ct. 87 L.Ed. 819 States, Mallory v. United 354 U.S.

449, 1356, (1957), S.Ct. L.Ed.2d 1479 appellant’s

and would then reverse convic police comply

tion for failure however, majority, statute. The above

opts merry way. to continue on its To the

majority’s subscription continued to a rule comport

of law that does not “civilized evidence,” procedure

standards Mc States, 340,

Nabb United 318 U.S. at 613, 824, S.Ct. at 87 L.Ed. at I dissent. Hemstreet, Sugarland, appellant. Hal for Huttash, Austin, Atty.,

Robert State’s for the State.

OPINION MILLER, Judge. post-conviction application

This is a for pursuant writ of habeas Ex Parte Herbert HUERTA. Art. No. 69352. 31, January The record reflects that on 1983, applicant following was convicted Texas, Appeals Court of Criminal pleas aggravated robbery, third En Banc. theft, degree felony possession aof weapon by a felon. Punishment in each Jan. years was assessed at seven confinement in Rehearing July Denied the Texas of Corrections. It expressly provided judg-

was also ment of each that each sentence was “to run concurrent with other State [the and federal court no. SA-74-CR-52 causes] Antonio, out of the Western District in San claims, Applicant Texas.” and the trial agrees its of facts and conclusions of law filed application, provision instant that this plea agreement. reflects, however, The record further 2, 1983, Depart- that on March ment of Corrections received a detainer for applicant which indicated that release custody from state Mar- United States custody shal would assume States Parole Commis- behalf United possible sion as a violator. Furthermore, applicant was notified that commence until his federal term would not custody he was either returned to federal 682 reparoled following guilty voluntarily a revocation hear- not entered. Since

ing, exclusively prov- a matter specific appropriate, within the enforcement was not See, ince of the Parole Commission. we found that the defendant was entitled States, Saulsbury v. United plea. 591 F.2d 1028 to withdraw his (5th Cir.1979). also, United States v. See We find that Burton controls the disposi- Shillingford, (5th Cir.1978); 586 F.2d 372 tion instant sought of the cause. The relief Henderson, Savage v. (5th 475 F.2d 78 granted. Applicant is ordered remanded Cir.1973). Accordingly, applicant’s County to the Sheriff of Bexar to answer running concurrently convictions are not in the indictment Cause Nos. 82-CR-3559- sentence, contrary with his federal to the B, 83-CR-29-A, and 83-CR-30 of the 226th provisions plea agreement. of the County.1 Judicial District Court of Bexar Applicant asserts that he was induced to It is so ordered. plead guilty by good faith erroneous representation that his sentences ONION, Judge, dissenting. Presiding running concurrently' would be with his proceedings post-convic- These involve a federal sentence. He asserts that our hold- application corpus tion for writ of habeas Burton, ing in Ex Parte pursuant filed to Article (Tex.Crim.App.1981), disposi- controls In application his for writ of habeas cor- tion of the instant cause. un- pus applicant contends that his bar- nearly der circumstances identical to the gain was broken and that he is entitled to cause, instant the defendant was induced to have his three convictions set aside. enter of based an unen- 31, 1983, applicant en- January On forceable that his state sen- guilty pleas tered the court to three tence was “to run concurrent with CR 77- before H-0058-W, (82-CR-3559-B, Alabama, separate Northern District of indictments 83- (4) CR-29-A, 83-CR-30), year granted charging a four the of- sentence.” We robbery, aggravated felony relief was not fenses of theft because kept weapon.” possession and thus the defendant’s and “felon in of V, dissenting opinion corpus McCormick's chides of fact' in habeas cases. Art. Sec. added). granting (Emphasis us for "relief on a devoid record Vernon’s Ann.Tex.Const. allega- support [applicant’s] evidence to Criminal And Article 11.07 of our Code of findings The tions." district who provides Procedure that the trial response fact and conclusions of law in to this hearing corpus petition hold a on a habeas writ of habeas was also the trial court entering findings of fact and con- before plea agreement. In his who heard law; thus, such a clusions findings tion, applica- pursuant of fact filed to this required. specifically are not he found “[t]here Construing and statu- these constitutional controverted, previously unresolved facts which tory together, provisions we conclude that legality applicant’s are material proper the one be- standard in such cases as way The district court in no confinement.” disputed fact-finding procedure fore us is whether ‘the applicant’s pled guilty claim that he reaching adequate employed for there was ... plea bargain. findings ” to this (All reasonably emphasis correct results.’ in excerpt transcript even include an original). stated, Attorney guilty plea which "The District Davila, justified that we are As in we find years and that would recommend seven procedure that was uti- our conclusion that the concurrently, and that in addi- would all run tion, adequate under cause was lized in the instant parole he’s on from Federal and I think these circumstances. has been revoked and it will run concur- ” appli- Although court found that the district Thus, rently with that. of the trial uncontroverted, statements were cant’s factual findings. our It is true that the tri- and the tran- as is obvious from the sentence evidentiary hearing al court did not pur- hold an script, that re- district court recommended note, however, application. suant to this We reasoning applicant. The lief be denied the Davila, parte we stated in Ex 530 S.W.2d in Pre- is demonstrated behind this conclusion (Tex.Cr.App.1975) (opinion on motion for re- i.e., dissenting opinion, siding Judge Onion’s hearing): 5,= = sophis- reject We but 3 + + given ‘upon power Court is broad ”[T]his try. affidavit or otherwise to ascertain ... matters concurrently, would all run Punishment was assessed each case addition, imprisonment for a I think he’s the court at term of years Federal and that has been revoked and seven expressly it will run with that.’ Corrections. It is stated in the appli- of each case that formal sentence “The foregoing illustrates given cant is credit on his sentence to be bargain agreement, as evidenced 8,1982, and that the October sentence judgments, provided three the is to run concurrent with other two concurrently run with sentences would that date state convictions of and with than the the federal rather fed- “federal no. SA-74-CR-52 out of the court concurrently running with eral sentence Antonio, Western in San District Court A review of the the state sentences. Texas.” record that the state sentences reveals running concurrently in with are fact the “grounds for relief” al- the federal sentence. Whether federal leges plead guilty pursuant “agreed he to concurrently with sentence will run the plea bargain agreement that his feder- the state sentences is within dis- concurrently al run sentence would with is cretion of the federal courts and out- Applicant’s his Texas sentence. jurisdiction of a to so side state court’s running concurrently sentence is grant. provision his Texas sentence and this of his law, trial in “Under Texas the unenforceable.” already passing on one under sentence corpus application habeas may, by proper in sentence another court convicting required by court as Arti- order, cumulate the sentence which he 11.07, evidentiary cle Without existing may or he imposes with the one hearing, judge, presided who had the concurrently, let his sentence run but applicant’s pleas at the guilty, time of nothing may he can affect the exist- do entered fact and conclusions of by ing imposed another court. sentence law follows: 112], parte Spears Tex.Cr.R. Ex [154 “Petitioner’s contention without (Tex.Cr.App.1951). S.W.2d 968 Conse- Petitioner, According merit. the bargain agree- quently, Petitioner’s bargain agreement between the State properly executed and ment has been Petitioner, judg- and as reflected the to which Pe- conforms with the contents court, purportedly ment provided the titioner consented. Petitioner’s sentence would controverted, previously “There are concurrently run with the sen- are material unresolved facts which However, appli- tences. the Petitioner’s legality applicant’s the confine- transposition cation reveals a of the ment. bargain agreements judgments’ and use has not demonstrated “The Petitioner federal and state. Each of terms grounds new which would entitle contain judgments the three the same him to relief.” concerning running language V.A.C.C.P., provides: sentences; Article the sentence will run concur- rent state cases feder- the other has defendant been “When the same cases, al no. out of the SA-74-Cr-52 in two or more convicted Antonio, in District San Texas. Western in each case con- punishment assessed Additionally, the record from Petitioner’s operated by in finement institution an No. re- guilty plea in Cause 83-CR-0030 jail or of Corrections plea bargain. judgment flects the contents imprisonment, for a term of transcript An excerpt of the contains in pronounced each shall and sentence be following language: if there in manner as had case the same “ conviction, except that one Attorney rec- been but ‘The District would judgment the discretion of the years and

ommend seven subsequent the second and existing affect convictions sentence which he may punishment either be shall was serving. The trial in passing begin judgment when the already sentence on one under sentence the preceding conviction has ceased to may, by proper order, another court operate, punishment or that shall run cumulate the imposes sentence which he concurrently with the other case or one, with the existing may or he let his cases, and sentence and execution shall concurrently, sentence run nothing but accordingly.” be may he do can affect the existing sen- imposed This, tence Under the there another court. “right” statute is no it seems, punish concurrent sentence. Whether dispute.” should be without ment will cumulatively It is clear that a Texas district may rests within sound discretion of the jurisdiction have case and the sen- trial judge. Carney v. 573 S.W.2d tence to imposed, be decide wheth- 24, (Tex.Cr.App.1978); 27 Rodriquez v. er to cumulate or decide to allow the sen- State, 552 451 (Tex.Cr.App.1977); S.W.2d concurrently tence to run with other convic- State, (Tex.Cr. Hester 544 v. S.W.2d 129 court, tions whether in that another Texas App.1976); State, v. 525 Branson S.W.2d state, court or a a court of sister or a State, 187 (Tex.Cr.App.1975); Banks v. 503 so, doing federal court. In the court has 582, S.W.2d (Tex.Cr.App.1974). 583 authority an order affecting to enter practice While it is better for the formal existing jurisdic- in this or other sentences sentence to whether reflect the sentence is authority only tions. It has to make the concurrently to run or to be cumulative being imposed Texas sentence to be cumu- sentences, outstanding with other it is well concurrently lative or run with other sen- settled that where a trial court does not is, tences. This or should be well known to order two or more sentences to be cumula- every member of the bench and bar en- tive, imprisonment the terms of shall auto- gaged practice of criminal law. matically concurrently. parte Ex In the trial the instant case made Bates, 790 (Tex.Cr.App.1976); 538 S.W.2d acting only clear in that he his was parte 185, Iglehart, Ex 535 S.W.2d regard to each state sentences (Tex.Cr.App.1976), and cases there cited. being imposed which he had the au- Ward, 64, parte See also Ex 161 Tex.Cr.R. thority act; he made each of that (1955); Sadler, parte 274 S.W.2d 693 Ex they state sentences would run concur- so 170, (1955). 162 Tex.Cr.R. 283 S.W.2d 235 rently with state convictions the other and applicable This rule is whether the other sentence; that he did not at- convictions are in federal and state courts tempt change federal court Baird, only. or in parte state courts Ex any way. 109, (1950), 154 Tex.Cr.R. 225 S.W.2d 845 supported In by this the trial is grounds. parte overruled on other Ex entries the sentences and the recitation Spears, 154 Tex.Cr.R. S.W.2d 917 plea from the of facts as to the statement (1951) (opinion rehearing), 18 A.L.R.2d bargain. assertion to the con- only overruled, (Tex. reh. 236 S.W.2d 968 trary allegations habeas Cr.App.1951). corpus application, is contradicted which p. 918, In Spears, 235 S.W.2d at this copies attached thereto. of the sentences Court wrote: where as a result This is not a situation “No order the Federal which Court plea a defendant is assured made, made, bargain have or could would have over which the existing a his federal sentence effect on an sentence from Furthermore, will run has no control concurrent Texas court. we ob- sentence, that, believing if and serve that even Baird had been tried the state charge plea bargain on another a state the defendant enters by the approved court could make no order which would which is trial court. parte Ex If were supposedly the facts (Tex.Cr.App.1981), it was held where a were in plea bargain Burton1 was induced a defendant was to enter given in fact that Burton be credit guilty upon based that he sentence, state court on his federal legal a would receive credit his federal sen- impossibility, right then the result was tence while in custody, State and he was reached there. receiving guilty not such credit his is not Burton shown, As case voluntarily not was entered. should not be controlled by it. There the Court wrote: If today’s opinion prevails, then “When a defendant enters every let judge, prosecutor guilty or nolo contendere to a lawyer (for criminal defense pro- own plea bargain agreement, the State tection) plea bargain If a beware. includes carry bound to out its side bar agreement an for a state sentence to run State, DeRusse gain. S.W.2d sentence, awith it will (Tex.Cr.App.). If prosecution does not be simple sufficient so state in lan- up bargain live its of a guage in the formal on the dock- such bargain an used as induce sheet et or in the statement facts. This ment for guilty plea, doubt raised is so because if defendant later makes a as to whether a plea under such post-conviction habeas claim that regarded circumstance can be as truly was broken because the Bass v.

voluntary. 576 S.W.2d running sentence concurrent- 400 (Tex.Cr.App.) The appropriate relief ly sentence, Court, with the state this for the to with- keep plea bargain failure a more, grant specific citing out will relief either agree enforcement of the plain disregarding ment or the plea, depend withdrawal of the evidence con- ing upon trary. participants the each Trial in situations circumstances of case. as State, Joiner v. (Tex.Cr. described would do to have above well the App.).” record reflect the defendant was ad- affidavits, A by evidentiary 1. of hearing, interrog- reexamination the record in Burton tions atories, shows the facts in Burton are similar to those in etc. the evidentiary hearing instant case. The state (contrary sentence in Burton Without an (state sentence) opinion reflected that it majority was "to run what is the stated in in Bur- 77-H-0058-W, ton) affidavits, etc., CR concurrent with depositions, Northern and without the Alabama, (4) year judge District of a presided four sentence." district other than the who Depart- After plea, findings Burton’s confinement in at Burton’s of facts. Corrections, ment of federal detainer was simply The court stated without of him, placed indicating upon release from kind in the record: custody the United States Parole Commis- “1. The defendant was induced to enter custody possi- sion would assume as a bargain of Burton by good representa- into the faith ble federal violator. His federal sen- tions that he would receive on his Fed- credit By post-convic- pro tence ceased to “run.” se custody. eral while in sentence State corpus application tion habeas Article under “2. He would not have entered into the 11.07, V.A.C.C.P., relief, sought claiming Burton plea bargain such had not been general application conclusory in his made.” being against that he terms was held "Texas law now, Strange as it seems to this writer the plea bargain” agreed entered into and Appeals granted Court of relief based Criminal plea bargain the state court. district The unsupported findings by these prayer “My argu- not described. His included trial, preside though who did not at the even how, Institution, get ment is can I into a Federal order of this Court was not carried out. I agreed upon.” the Law and the as states court question would correctness decision properly No in Burton facts were not devel- answer was filed and no for the If, however, hearing oped. evidentiary convicting findings was held. were correct bargain filed no the state fact or conclusions of was that court give prior law. The record in this condition was forward- would on the "credit" sen- Court, tence, beyond authority ed to this the cause which remanded which was convicting facts sur- the rounding determine the then result reached Burton bargain allega- and Burton’s was correct. part vised as a I would order the trial court to hold a state court has no authority or control and forward the record of same to sentence, the federal and that the defend- If Court. it be shown that ant understands that running the state sen- relief, thereafter entitled to then at that tence concurrently with the time, federal sen- now, and not rule could tence does not mean that the federal sen- adopted. be tence will automatically always run con-

currently with the state sentence. WHITE, JJ., W.C. join DAVIS and in this dissenting opinion. stated,

For the reasons Morri- son say, used to I dissent with all the vigor my

at command. WHITE, JJ.,

W.C. DAVIS and join this

opinion.

McCORMICK,Judge, dissenting.

I wholeheartedly embrace the admonish- Brother, ment my Presiding Judge, Stephen Ray NETHERY, Appellant, that: participants “... Trial in situations as Texas, Appellee. The STATE of described above would do well to have the record reflect that the defendant was No. 68849. advised as a bargain Appeals Texas, Court of Criminal the state court has authority or con- En Banc. trol over the federal and that the defendant understands that running May the state with the Rehearing July Denied federal sentence does not mean that the automatically sentence will or al- ways with the state

sentence.”

I only point write majority out that the

today grants applicant relief on a record any support devoid of evidence to allegations. As noted in Onion’s

opinion, was held relative to

applicant’s allegations. There was no tes-

timony only ap- official and

plicant’s pleadings are considered

majority in granting the relief—even in the

face of the trial court’s

contrary.

Instead, finds that

“record reflects” facts which their composed

conclusion. This “record” is

unsupported, hearsay documents attached applicant’s petition. To conclude from

this “record” that was misled is pleading

to elevate to the status of evi- rule, adoption

dence. To the I such vigorously

must dissent.

Case Details

Case Name: Ex Parte Huerta

Court Name: Court of Criminal Appeals of Texas

Date Published: Jan 30, 1985

Citation: 692 S.W.2d 681

Docket Number: 69352

Court Abbreviation: Tex. Crim. App.