Salazar, Mario Alberto

















IN THE COURT OF CRIMINAL APPEALS

OF TEXAS




NO. WR-71,778-01


EX PARTE MARIO ALBERT SALAZAR, Applicant


ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B-06-2103-0-CR-B IN THE 156TH DISTRICT COURT

FROM BEE COUNTY


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 was convicted of money laundering between $1,500 and $20,000 and sentenced to five years' imprisonment. He did not appeal his conviction.

Applicant contends that his sentence is illegal, his plea was involuntary due to ineffective assistance of counsel, and that TDCJ is wrongfully denying him mandatory supervision eligibility. Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington, 466 U.S. 608 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000). 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 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 addressing all of Applicant's grounds for relief. Specifically, the trial court shall make findings as to whether the prior convictions alleged in the indictment were properly sequential to enhance Applicant's punishment under Section 12.42(a)(2) of the Penal Code. If they were not, the trial court shall make findings as to whether Applicant had other prior convictions available to enhance the money laundering conviction. The trial court shall supplement the record with certified copies of all indictments, judgments, and any other documentation relevant to disposition of this application. Additionally, the trial court shall give trial counsel the opportunity to respond to Applicant's ineffective assistance of counsel allegation and shall make specific findings of fact and conclusions of law regarding trial counsel's advice concerning the applicable sentencing ranges Applicant faced with respect to all charges in the indictment. The trial court shall also order the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit stating whether TDCJ is treating Applicant's current sentence as eligible for mandatory supervision and if not, for what reason. If the trial court finds that Applicant is not being considered for mandatory supervision release due to a prior conviction rendering him ineligible under Section 508.149(a) of the Government Code, the trial court shall supplement the record with certified copies of the indictment and judgment for the conviction causing Applicant's ineligibility. 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 claims 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: April 29, 2009

Do not publish