Mielnicki, Robert David ( 2014 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-81,875-01
EX PARTE ROBERT DAVID MIELNICKI, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. C-371-010245-1230331-A IN THE 371ST DISTRICT COURT
FROM TARRANT COUNTY
Per curiam.
ORDER
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 robbery and
sentenced to fifteen years’ imprisonment. He did not appeal his conviction.
In a single ground, Applicant contends that he pleaded guilty on the condition that his
sentence would run concurrently with a federal sentence. The trial court adopted the State’s
proposed findings of fact and conclusions of law and recommended that we set aside Applicant’s
conviction. Ex parte Huerta, 692 S.W.2d 681 (Tex. Crim. App. 1985).
We believe the record should be further developed. Neither the plea papers nor the space on
the judgment for the terms of the plea bargain say concurrent sentences was a condition of the plea
bargain. 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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order
trial counsel and the prosecutor to file affidavits in response to Applicant’s claim. The trial court
shall also order the District Clerk to forward the reporter’s record of the plea hearing, if it exists.
The trial court may use any means set out in TEX . CODE CRIM . PROC. art. 11.07, § 3(d).
Applicant appears to be represented by counsel. If he is not and the trial court elects to hold
a hearing, it shall determine whether he is indigent. If he 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.
After reviewing trial counsel’s and the prosecutor’s affidavits and other evidence in the
record, if any, the trial court shall determine whether concurrent sentences was a condition of the
plea bargain. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: September 17, 2014
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