## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A 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. C-371-010245- 1230331-A IN THE 371ST DISTRICT COURT

F ROM TARRA NT COUNTY

Per curiam . O R D E R Pursuant to the provisions of Article 11.07 of th e T ex as C o de 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 .2d 824, 826 (Tex. Crim. App

. 1 9 67). 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 s i n gl e g round, Applicant contends that he pleade d guilty on the condition that his sentenc e would run concur rently with a fede ra l sentenc e. The trial court adopted the State’s proposed findings of fac t and c o n cl u s i o n s of l aw and rec ommended that we set aside Applicant’s conviction. Ex parte Hue rta , 692 S.W .2d 681 (Tex. Crim. App. 1985). We believe the rec ord should be further develope d. Neither the plea paper s nor the space on the judgme nt for the terms of the plea barg ain say concur rent sentenc es was a condition of the pleabarg ain. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. In these circ umstances, additional fac ts are neede d. As we he ld in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the tria l court is the appr opriate f orum for f

indings of f

act. The trial court sha ll order trial counsel and the prose cu t or t o file affidavits in response to Applicant’s claim. The trial court shall also order t h e Di strict Clerk t o forwa rd t he reporter ’s record of the pl ea hear ing, if it exis ts. The trial c ourt may

use any means set out in T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d)

. 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 indigent. I f he is indige nt and wishes to be re prese nted by counsel, the trial court shall appoint an attorney to repr esent him at the hearing. T E X . C O D E C R I M . P R O C . art. 26.04. After revie wing trial counsel’s and the prosec utor’s aff i d av i t s and other evidenc e in the

rec ord, if any , the trial court shall deter mine whether concur

rent sentenc es was a conditio n of the plea barg ain. The trial court shall also make any other finding s of fac t a nd conclusions of law that it deems rele vant and a

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abeyance until the trial court has resolved the fac t issues. The i s s u es s h all be resolved within 90 day s of this order

. A supplemental transcr ipt containing al l aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hearing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be forwar ded to this Court wit hin 120 day s of the date of this order. Any extensions of t ime shall be obtained f

rom this Court.

Filed: September

17, 2014 Do not publish