Opinion
NO. WR-72,130-02
08-22-2012
EX PARTE MARCIAL MATA BOCANEGRA, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. CR-0948-03-C IN THE 139TH DISTRICT COURT
FROM HIDALGO 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 murder and sentenced to thirty-five years' imprisonment. The Thirteenth Court of Appeals dismissed his appeal. Bocanegra v. State, No. 13-07-00212-CR (Tex. App.-Corpus Christi/Edinburg Sept. 20, 2007, no pet.).
Applicant contends that one condition of his plea agreement was that he would receive the shortest sentence among his co-defendants. He also contends that this condition was part of the record at his plea hearing and the State made this promise to him through counsel. He says, however, that one of his co-defendants was sentenced to twenty-five years and, as a result, his plea agreement was breached. The trial court concluded that the plea agreement was not breached. Because the plea agreement and reporter's record of the plea hearing, if one exists, were not forwarded to this Court, we are not able to determine from the record what the plea agreement was and whether it was breached.
Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993 S.W.2d 114, 115 (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. 1960), the trial court is the appropriate forum for findings of fact. The trial court shall order trial counsel to respond to Applicant's claim. 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 further findings of fact and conclusions of law as to whether the plea agreement in Applicant's case was breached. The trial court shall also order the Hidalgo County District Clerk to forward the plea agreement and reporter's record, if any, of Applicant's plea hearing to this Court. The trial court shall 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. Do not publish