Polendo, Luiz Jr. ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-68,580-01

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EX PARTE LUIZ POLENDO, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 199CR5700W-W1 IN THE 144^TH JUDICIAL DISTRICT COURT FROM BEXAR COUNTY

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   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 nolo contendere to burglary of a habitation, and originally received four years' probation. His probation was later revoked, and he was placed on shock probation. The shock probation was also revoked, and Applicant was sentenced to ten years' imprisonment. Applicant filed an appeal, but later requested that the appeal be dismissed. Polendo v. State, No. 04-06-00530-CR (Tex. App. - San Antonio, April 18, 2007).

Applicant contends, inter alia, that his ten-year sentence after revocation was unauthorized. The trial court finds that Applicant originally pleaded nolo contendere and received deferred adjudication community supervision. However, there is nothing in the habeas record to show that Applicant was aware that he was being placed on deferred adjudication as opposed to "straight" probation. If Applicant was indeed given deferred adjudication community supervision, then his ten-year sentence after adjudication would be authorized. On the other hand, if Applicant received "straight" probation, then he should only have been subject to a maximum four-year sentence after revocation.

Applicant has alleged facts that, if true, might entitle him to relief. 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 shall give Applicant's original trial counsel, Lisa Jarrett, the opportunity to respond to Applicant's allegations. 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 make findings of fact and conclusions of law first as to whether Applicant received deferred adjudication or "straight" probation when he entered his original plea. The trial court shall also make findings as to whether Applicant was correctly advised by counsel as to the distinction between deferred adjudication and "straight" probation. If Applicant received deferred adjudication, the trial court shall supplement the habeas record with copies of the order placing Applicant on deferred adjudication and the judgment adjudicating him guilty. If Applicant received "straight" probation, the trial court shall supplement the record with copies of the judgment of probation and the judgment upon revocation. If the trial court finds that Applicant received "straight" probation, the trial court shall make findings as to whether the ten-year sentence after revocation was objected to by counsel at the time of the revocation. 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 7, 2007

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