Opinion
NO. WR-87,273-02
03-07-2018
EX PARTE ARIEL SOLIS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2015-D CR-01127-G IN THE 404TH DISTRICT COURT FROM CAMERON 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 charged with one count of continuous sexual abuse of a child and one count of indecency with a child by exposure. He pleaded guilty pursuant to a plea agreement, and was sentenced to eighteen years' imprisonment for Count I and ten years' imprisonment for Count II, to run concurrently. He did not appeal his conviction.
Applicant contends, among other things, that his plea was involuntary because he believed that he was pleading guilty to a reduced charge in Count I, and was pleading to a second degree felony. The plea papers indicate that the State agreed to reduce the continuous sexual abuse of a young child offense charged in Count I to the lesser offense of aggravated sexual assault of child. Applicant was admonished as to the punishment range for a first degree felony in Count I. Aggravated sexual assault of a child is a first degree felony, carrying a punishment range of five to ninety-nine years' or life imprisonment. However, the judgment in this case reflects a conviction in Count I for continuous sexual abuse of a young child. The punishment range for continuous sexual abuse of a young child is twenty-five to ninety-nine years' or life imprisonment.
This Court has considered Applicant's other claims and finds them to be without merit. --------
If Applicant did plead guilty to continuous sexual abuse, then his eighteen-year sentence is below the minimum punishment range for the offense. If Applicant pleaded guilty to aggravated sexual assault, then the judgment contains a clerical error, which may be corrected by way of a judgment nunc pro tunc. 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 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 as to what offense Applicant pleaded guilty to in Count I. If Applicant pleaded guilty to continuous sexual abuse of a young child, then the trial court shall make findings as to whether Applicant's plea was knowingly and voluntarily entered. If Applicant pleaded guilty to the lesser offense of aggravated sexual assault, the trial court shall enter a judgment nunc pro tunc correcting the offense of conviction on the judgment, and shall send a copy of that judgment to the Texas Department of Criminal Justice. 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 must be requested by the trial court and shall be obtained from this Court. Filed: March 7, 2018
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