Rodriguez, Ex Parte Raul ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. AP-75,281

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EX PARTE RAUL RODRIGUEZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 443701-B IN THE 184^TH DISTRICT COURT OF HARRIS COUNTY

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   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 murder and sentenced to twenty years' imprisonment. We filed and set this application for consideration of applicant's time-credit claims.

While serving his sentence for the murder conviction, applicant was transferred to federal custody pursuant to a federal bench warrant. The State of Texas did not file a detainer with federal authorities. Applicant asserts that, after his acquittal on federal charges and release by the U.S. Marshal's Service and his return to his parent's home in Mexico, the United States Department of Justice, on behalf of the State of Texas, presented to the Mexican government an arrest warrant seeking the return of applicant. Applicant contends that he "was arrested on March 12, 2001, by Mexican authorities pursuant to the request for provisional arrest." Applicant asserts that he is entitled to credit for the time he spent in the custody of Mexican authorities after his arrest in Mexico pursuant to the fugitive warrant presented to Mexican officials by the United States Department of Justice. Applicant has alleged facts that, if true, might entitle him to relief.

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 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.

Tex. Code Crim Proc. art. 11.07, § 3(c) states that "it shall be the duty of the convicting court to decide whether there are controverted, previously unresolved facts material to the legality of the applicant's confinement." In Ex parte Kuban, 763 S.W.2d 426, 427 (Tex. Crim. App. 1989), we held that Kuban was entitled to credit for time during which he was in custody in a California jail; even though there was "no evidence that a detainer was ever filed," the record included a copy of his record from San Francisco indicating that "he was arrested for nothing other than being a fugitive from justice in Texas," and there was correspondence from the San Francisco sheriff's office verifying his arrest on a fugitive warrant from Texas. We stated that "if an accused is held by that other state solely on charges pending in Texas, he should be awarded credit for time served pursuant to his detention on those Texas charges." Id. (Emphasis in original.) The record in this case does not reveal whether applicant was held in Mexico solely on the fugitive warrant.

The trial court shall make findings of fact and conclusions of law in regard to applicant's claim that he was held by Mexican officials solely because of the fugitive warrant presented to Mexican authorities by the United States Department of 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 returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: March 29, 2006

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