Ex parte Huerta

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.

It is so ordered.

. Judge McCormick's dissenting opinion chides us for granting "relief on a record totally devoid of any evidence to support [applicant’s] allegations." The district judge who filed findings of fact and conclusions of law in response to this writ of habeas corpus was also the trial court judge who heard the plea agreement. In his findings of fact filed pursuant to this application, he specifically found that “[t]here are not controverted, previously unresolved facts which are material to the legality of the applicant’s confinement.” The district court in no way disputed the applicant’s claim that he pled guilty pursuant to this plea bargain. The findings even include an excerpt of the transcript of the guilty plea which stated, "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. ” Thus, the findings of the trial court support our findings. It is true that the trial court did not hold an evidentiary hearing pursuant to this application. We note, however, as we stated in Ex parte Davila, 530 S.W.2d 543, 545 (Tex.Cr.App.1975) (opinion on motion for rehearing):

”[T]his Court is given broad power ‘upon affidavit or otherwise to ascertain ... matters of fact' in habeas corpus cases. Art. V, Sec. 5, Vernon’s Ann.Tex.Const. (Emphasis added). And Article 11.07 of our Code of Criminal Procedure provides that the trial court may hold a hearing on a habeas corpus petition before entering his findings of fact and conclusions of law; thus, such a hearing is not required.

Construing these constitutional and statutory provisions together, we conclude that the proper standard in such cases as the one before us is whether ‘the fact-finding procedure there employed was ... adequate for reaching reasonably correct results.’ ” (All emphasis in original).

As in Davila, we find that we are justified in our conclusion that the procedure that was utilized in the instant cause was adequate under these circumstances.

Although the district court found that applicant’s factual statements were uncontroverted, as is obvious from the sentence and the transcript, the district court recommended that relief be denied the applicant. The reasoning behind this conclusion is demonstrated in Presiding Judge Onion’s dissenting opinion, i.e., 2 + 3 = 5, but 3 + 2 = 5. We reject this sophistry.