IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-68,580-01
EX PARTE LUIZ POLENDO, JR., Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1999CR5700W-W1 IN THE 144TH DISTRICT COURT
FROM BEXAR COUNTY
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 guilty to burglary of a habitation, and originally received deferred adjudication community supervision. He was later adjudicated guilty and sentenced to ten years' imprisonment, but was granted shock probation for a period of four years. His shock probation was eventually revoked, and he was sentenced to the underlying sentence of ten years' imprisonment.
On November 7, 2007, this Court remanded this application to the trial court for findings of fact and conclusion of law. On March 6, 2008, the trial court made findings of fact and conclusions of law that were based on affidavits from Applicant's attorneys at all stages in the proceedings. The trial court recommended that relief be denied. The trial court's findings and recommendations are supported by the supplemental record.
In his original writ, Applicant also raised grounds alleging that he was being improperly denied credit for pre-sentencing jail time. The appropriate remedy in such a situation is to require Applicant to present the issue to the trial court by way of a nunc pro tunc motion. If the trial court fails to respond or does not grant Applicant the credit he seeks, Applicant is first required to seek relief in the Court of Appeals, by way of a petition for a writ of mandamus, unless there is a compelling reason not to do so. Ex parte Ybarra, 149 S.W.3d 147, 148-149 (Tex. Crim. App. 2004). Therefore, based on the trial court's findings of fact and conclusions of law, Applicant's first and second grounds for review are denied, and his third and fourth grounds for review are dismissed pursuant to Ex parte Ybarra.
Filed: April 9, 2008
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