## IN THE COURT O F CRIMINA L A PPEA LS OF TEXA S NO. WR-81,875-01

EX P ARTE ROBERT DAVID M IELNICKI, Applicant
ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 1230331D IN THE 371S T DIST RICT COURT

F ROM TARRA NT COUNTY
Per curiam . O R D E R Pursuant to the provisions of Ar t i cl e 1 1
. 07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 418 S.W
. 2 d 8 2 4, 826 (Tex. Crim. App. 1967). Applicant was convicted of robber y and sentenc ed to fiftee n y ear s’ imprisonment. He did not appea l his conviction. I n a single g round, Applicant contends that he pleade d g uilty on the con d i t i o n t h at his sentenc e would ru n concur rently with a fede ral sentenc e. The trial court adopted the State’s p ro p o s ed fi ndings of fac t and conclusions of l aw and rec ommended that we set aside Applicant’s conviction. Ex parte Huerta , 692 S.W .2d 681 (Tex. Crim. App. 1985). On September 17, 2014, we2

rema nded this application and direc ted the trial court to deter mine whether concur

rent sentenc es was
a condition of the plea ag ree ment. On rema nd, afte r holding an evidentiar y hear ing, the trial court found that Applicant enter ed into a plea ag ree m en t wi t h t he State with the understanding that his sentenc e would run concur rently with any fede ral sentenc e. The trial court ag ain rec ommended that
we se t aside Applica

nt’s conviction. We believe that the rec ord should be further develope d. On rema nd, counsel testified at the evidentiar y hear ing that he told Applicant, “[A]l though I couldn’t g uara ntee the fede ral court would
run it [any fede ral sentenc e] concur rently , I could tell him that the judge here would order the state sentenc e to run concur

rently with any fede ral sentenc e.” I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appr opriate f

orum for f

indings of f

act. Applicant appea

rs to be repr esente d by counsel. I f he is not and the trial court elec ts to hold a hea ring , it shall determine whe ther he is indige nt. I f he is indigent a nd wishes to be re prese nted by counsel, the trial court shall appoint an attorney to repr esent him at the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make further finding s and conclusions and deter mine whether counsel’s testimony above is cre dible and whether Applicant, having been advised b y counsel that his sentenc es might not run concur rently , has established that his g uilty plea was involuntary
. The trial court shall also make any other findings of fac t and conclusions of l aw that i t d ee m s re l evant and appropr iate to the disposition of Applicant’s cla im for habe as cor pus relief
. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s o f t h i s o rder
. A supplemental transcr ipt containing all3

aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of t he date of t his order
. Any extensions of time shall be obtained f

rom this Court.

Filed: F ebrua

ry 25, 2015 Do not publish