Ex parte Huerta

• Decision Date: 30 January 1985
• Docket Number: No. 69352,69352
• Citation: 692 S.W.2d 681
• Parties: Ex Parte Herbert HUERTA.
• Court: Texas Court of Criminal Appeals

Page 681

692 S.W.2d 681

Ex Parte Herbert HUERTA.

No. 69352.

Court of Criminal Appeals of Texas En Banc.

Jan. 30, 1985.

Rehearing Denied July 24, 1985.

Hal Hemstreet, Sugarland, for appellant.

Robert Huttash, State's Atty., Austin, for the State.

Before the court en banc.

OPINION

MILLER, Judge.

This is a post-conviction application for writ of habeas corpus filed pursuant to Art. 11.07, V.A.C.C.P.

The record reflects that on January 31, 1983, applicant was convicted following his pleas of guilty to aggravated robbery, third degree felony theft, and possession of a weapon by a felon. Punishment in each was assessed at seven years confinement in the Texas Department of Corrections. It was also expressly provided in the judgment of each that each sentence was "to run concurrent with [the other State causes] and federal court no. SA-74-CR-52 out of the Western District in San Antonio, Texas." Applicant claims, and the trial court agrees in its findings of facts and conclusions of law filed pursuant to the instant application, that this provision was part of the plea agreement.

The record further reflects, however, that on March 2, 1983, the Texas Department of Corrections received a detainer for applicant which indicated that upon release from state custody the United States Marshal would assume custody of applicant on behalf of the United States Parole Commission as a possible federal parole violator. Furthermore, applicant was notified that his federal term would not commence until he was either returned to federal custody or reparoled following a revocation hearing, a matter exclusively within the province of the Parole Commission. See, Saulsbury v. United States, 591 F.2d 1028 (5th Cir.1979). See also, United States v. Shillingford, 586 F.2d 372 (5th Cir.1978); Savage v. Henderson, 475 F.2d 78 (5th Cir.1973). Accordingly, applicant's state convictions are not running concurrently with his federal sentence, contrary to the provisions of the plea agreement.

Applicant asserts that he was induced to plead guilty by the good faith erroneous representation that his state sentences would be running concurrently with his federal sentence. He asserts that our holding in Ex Parte Burton, 623 S.W.2d 418 (Tex.Crim.App.1981), controls the disposition of the instant cause. In Burton, under circumstances nearly identical to the instant cause, the defendant was induced to enter a plea of guilty based upon an unenforceable representation that his state sentence was "to run concurrent with CR 77-H-0058-W, Northern District of Alabama, a four (4) year sentence." We granted relief because the plea bargain was not kept and thus the defendant's plea of guilty was not voluntarily entered. Since specific enforcement was not appropriate, we found that the defendant was entitled to withdraw his plea.

We find that Burton controls the disposition of the instant cause. The relief sought is granted. Applicant is ordered remanded to the Sheriff of Bexar County to answer the indictment in Cause Nos. 82-CR-3559-B, 83-CR-29-A, and 83-CR-30 of the 226th Judicial District Court of Bexar County. ¹

It is so ordered.

ONION, Presiding Judge, dissenting.

These proceedings involve a post-conviction application for writ of habeas corpus filed pursuant to Article 11.07, V.A.C.C.P.

In his application for writ of habeas corpus applicant contends that his plea bargain was broken and that he is entitled to have his three convictions set aside.

On January 31, 1983, the applicant entered guilty pleas before the court to three separate indictments (82-CR-3559-B, 83-CR-29-A, and 83-CR-30), charging the offenses of aggravated robbery, felony theft and "felon in possession of weapon."

Punishment was assessed in each case by the court at imprisonment for a term of seven years in the Texas Department of Corrections. It is expressly stated in the formal sentence of each case that the applicant is to be given credit on his sentence from October 8, 1982, and that the sentence is to run concurrent with the other two state convictions of that date and with "federal court no. SA-74-CR-52 out of the Western District Court in San Antonio, Texas."

In his "grounds for relief" applicant alleges he "agreed to plead guilty pursuant to a plea bargain agreement that his federal sentence would run concurrently with his Texas sentence. Applicant's federal sentence is not running concurrently with his Texas sentence and this provision of his plea bargain is unenforceable."

The habeas corpus application was filed in the convicting court as required by Article 11.07, V.A.C.C.P. Without evidentiary hearing, the trial judge, who had presided at the time of applicant's pleas of guilty, entered findings of fact and conclusions of law as follows:

"Petitioner's contention is without merit. According to Petitioner, the plea bargain agreement between the State and Petitioner, as reflected by the judgment of the court, purportedly provided that Petitioner's federal sentence would run concurrently with the state sentences. However, the Petitioner's application reveals a transposition of the plea bargain agreements and judgments' use of the terms federal and state. Each of the three judgments contain the same language concerning the running of the sentences; the sentence will run concurrent with the other state cases and federal court no. SA-74-Cr-52 out of the Western District in San Antonio, Texas. Additionally, the record from Petitioner's guilty plea in Cause No. 83-CR-0030 reflects the contents of the plea bargain. An excerpt of the transcript contains the following language:

" 'The District Attorney would recommend seven years and that they would all run concurrently, and that in addition, I think he's on parole from Federal and that has been revoked and it will run concurrently with that.'

"The foregoing illustrates that the plea bargain agreement, as evidenced by the three judgments, provided that the state sentences would run concurrently with the federal sentence, rather than the federal sentence running concurrently with the state sentences. A review of the record reveals that the state sentences are in fact running concurrently with the federal sentence. Whether the federal sentence will run concurrently with the state sentences is totally within the discretion of the federal courts and is outside of a state court's jurisdiction to so grant.

"Under Texas law, the trial judge in passing sentence on one already under sentence in another court may, by proper order, cumulate the sentence which he imposes with the existing one or he may let his sentence run concurrently, but nothing he may do can affect the existing sentence imposed by another court. Ex parte Spears , 236 S.W.2d 968 (Tex.Cr.App.1951). Consequently, Petitioner's plea bargain agreement has been properly executed and conforms with the contents to which Petitioner consented.

"There are no controverted, previously unresolved facts which are material to the legality of the applicant's confinement.

"The Petitioner has not demonstrated any new grounds which would entitle him to relief."

Article 42.08, V.A.C.C.P., provides:

"When the same defendant has been convicted in two or more cases, and the punishment assessed in each case is confinement in an institution operated by the Department of Corrections or the jail for a term of imprisonment, judgment and sentence shall be pronounced in each case in the same manner as if there had been but one conviction, except that in the discretion of the court, the judgment in the second and subsequent convictions may either be that the punishment shall begin when the judgment and sentence in the preceding conviction has ceased to operate, or that the punishment shall run concurrently with the other case or cases, and sentence and execution shall be accordingly."

Under the statute there is no "right" to a concurrent sentence. Whether the punishment will run concurrently or cumulatively rests within the sound discretion of the trial judge. Carney v. State, 573 S.W.2d 24, 27 (Tex.Cr.App.1978); Rodriquez v. State, 552 S.W.2d 451 (Tex.Cr.App.1977); Hester v. State, 544 S.W.2d 129 (Tex.Cr.App.1976); Branson v. State, 525 S.W.2d 187 (Tex.Cr.App.1975); Banks v. State, 503 S.W.2d 582, 583 (Tex.Cr.App.1974).

While it is better practice for the formal sentence to reflect whether the sentence is to run concurrently or to be cumulative with other outstanding sentences, it is well settled that where a trial court does not order two or more sentences to be cumulative, the terms of imprisonment shall automatically run concurrently. Ex parte Bates, 538 S.W.2d 790 (Tex.Cr.App.1976); Ex parte Iglehart, 535 S.W.2d 185, 187 (Tex.Cr.App.1976), and cases there cited. See also Ex parte Ward, 161 Tex.Cr.R. 64, 274 S.W.2d 693 (1955); Ex parte Sadler, 162 Tex.Cr.R. 170, 283 S.W.2d 235 (1955).

This rule is applicable whether the other convictions are in federal and state courts or in state courts only. Ex parte Baird, 154 Tex.Cr.R. 109, 225 S.W.2d 845 (1950), overruled on other grounds. Ex parte Spears, 154 Tex.Cr.R. 112, 235 S.W.2d 917 (1951) (opinion on rehearing), 18 A.L.R.2d 507, reh. overruled, 236 S.W.2d 968 (Tex.Cr.App.1951).

In Spears, 235 S.W.2d at p. 918, this Court wrote:

"No order which the Federal Court made, or could have made, would have any effect on an existing sentence from a Texas court. Furthermore, we may observe that even if Baird had been tried on another charge in a state court, that court could make no order which would affect the existing sentence which he was serving. The trial judge in passing sentence on one already under sentence in another court may, by proper order, cumulate the sentence which he imposes with the existing one, or he may let his sentence run concurrently, but nothing he may do can affect the existing sentence imposed by another court. This, it seems, should be without dispute."

It is clear that a Texas district court may have...