                                                                              WR-62,485-03
                                                                COURT OF CRIMINAL APPEALS
                                                                                AUSTIN, TEXAS
                                                              Transmitted 6/12/2015 11:33:08 AM
                                                                Accepted 6/12/2015 11:42:21 AM
                                                                                 ABEL ACOSTA
                                                                                         CLERK
                       CAUSE NUMBER WR-62,48S-03
                                                                  RECEIVED
                                                           COURT OF CRIMINAL APPEALS
                                                                  6/12/2015
                                   IN THE                    ABEL ACOSTA, CLERK


                       COURT OF CRIMINAL APPEALS

                           FOR THE STATE OF TEXAS


                                 EX PARTE
                         SERGIO DANIEL GONZALES,
                                 Applicant


                  FROM THE 197th DISTRICT COURT
                    OF CAMERON COUNTY, TEXAS
               TRIAL COURT CASE NUMBER 03-CR-278-C


                 STATE'S SUGGESTION FOR REHEARING


TO THE HONORABLE COURT OF CRIMINAL APPEALS:

      COMES NOW RESPONDENT, THE STATE OF TEXAS, by and

through the Honorable Luis V. Saenz, the Cameron County District Attorney,

and files this Suggestion for Rehearing of Applicant's Application for Writ of

Habeas Corpus, and in support thereof, would respectfully show this

Honorable Court as follows:




State's Suggestion for Rehearing                                         Page 1
                         I. STATEMENT OF THE CASE

      This proceeding involves a Third Application for Writ of Habeas Corpus

filed by Respondent, SERGIO DANIEL GONZALES, seeking relief from a

judgment of conviction, and sentence, in cause number 03-CR-278-C, out of

the 197th District Court of Cameron County, Texas. Said Application was

dismissed by this Court on September 17, 2014.

          II. BASIS FOR SUGGESTION FOR RECONSIDERATION

      In Ex Parte Moreno, 245 S.W.3d 419 (Tex. Crim. App. 2008), Presiding

Judge Keller set forth, in her concurring opinion, the elements which must be

present in order for this Court to reconsider an application for writ of habeas

corpus:

      Reconsidering an application for writ of habeas corpus after a
      significant passage of time should be a rare event, and should not
      become a means of circumventing the statutes [concerning
      subsequent writ applications]. At a minimum, two conditions
      should be present. First, the reconsideration must indeed involve
      a claim that was originally raised in the application. Second, an
      indisputable mistake of fact or law that the reconsideration seeks
      to rectify must have been made by this Court.

fd. at 431 (Keller, PJ., concurring).

      In accordance with the above stated conditions, the State respectfully

suggests that the claims originally raised in Applicant's Third Application for

State's Suggestion for Rehearing                                        Page 2
Writ of Habeas Corpus (dismissed by this Court on September 17, 2014)

should be reconsidered by this Court, because a mistake of fact has been

made herein.      The allegations supporting the State's suggestion are as

follows:

       (A)   This Court dismissed Applicant's Third Application for Writ of

Habeas Corpus herein, stating that Applicant's sentence has been discharged.

       (8) The undersigned counsel for the State has determined, through a

review of T.D.C,J. records and conversation with counsel for T.D.C,J., that

Applicant's sentence in Trial Court Cause Number 03-CR-278-C has not been

discharged. In support of this statement of fact, the State attaches hereto

an affidavit from the Program Supervisor for the T.D.C,J. Classifications and

Records Department.         Specifically, Trial Court records reflect that, on

November 29, 2005, Applicant's sentence in 03-CR-278-C was imposed and

ordered to run consecutive to an earlier imposed sentence in 04-CR-1586-C.

In cause number 04-CR-1586-C, Applicant was sentenced on three different

counts to a term of confinement for 50 years, 25 years and two years.

Accordingly, Applicant has not yet discharged his sentence in 04-CR-1586-C;

and therefore, Applicant has not even begun to serve his sentence in cause



State's Suggestion for Rehearing                                        Page 3
number 03-CR-278-C.         Because Applicant has not yet begun to serve his

sentence in 03-CR-278-C, the State suggests that it was a mistake of fact for

this Court to dismiss Applicant's Third Application for Writ of Habeas Corpus,

stating that the sentence has been discharged.

       (C) Accordingly, the State requests, and suggests that it would be

proper, that this Court reconsider this matter, and that Applicant's Application,

the State's answer, and the Trial Court's findings and recommendation all be

considered by this Court. The State further requests and suggests that upon

reconsideration, that the relief requested in Applicant's Third Application for

Writ of Habeas Corpus should be DENIED.

      (D) The reason for the filing of this suggestion by the State is that the

undersigned counsel's duty, as prosecutor, is to see that justice is done. Tex.

Code Crim. Proc. art. 2.01.         Additionally, the State believes that a

consideration and adjudication of the merits of Applicant's Third Application

for Writ of Habeas Corpus would benefit the parties herein in subsequent

post-conViction proceedings.




State's Suggestion for Rehearing                                          Page 4
                           CONCLUSION &. PRAYER

       Therefore, based on the above, RESPONDENT, the State of Texas,

requests, and suggests that it would be proper, that this Court reconsider this

matter, and that Applicant's Application, the State's answer, and the Trial

Court's findings and recommendation all be considered by this Court. The

State further requests and suggests that upon reconsideration, that the relief

requested in Applicant's Third Application for Writ of Habeas Corpus be

DENIED.

                                         Respectfully Submitted,

                                         LUIS V. SAENZ
                                         Cameron County District Attorney
                                         964 East Harrison Street, Fourth Floor
                                         Brownsville, Texas 78520-7123
                                         Phone: (956) 544-0849
                                         Fax: (956) 544-0869



                                   By:   Is/Rene B. Gonzalez
                                         Rene B. Gonzalez
                                         Assistant District Attorney
                                         State Bar No. 08131380
                                         rgonzalez1@co.cameron.tx.us

                                         Attorneys for the State of Texas




State's Suggestion for Rehearing                                           Page 5
                          CERTIFICATE OF SERVICE

       I certify that a copy of the foregoing State's Suggestion for Rehearing

was mailed to Sergio Daniel Gonzalez # 01342241, TDO - Wynne Unit, 810

FM 2821, Huntsville, Texas 77349 on the 12th day of June, 2015.


                                    /s/ Rene B. Gonzalez
                                    Rene B. Gonzalez




State's Suggestion for Rehearing                                       Page 6
                                  AFFIDAVIT OF CHARLEY VALDEZ




STATE OF TEXAS

COUNTY OF WALKER


         BEfORE ME, the undersigned, a Notary Public in and for the State of Texas, on this day

personally appeared Charley Valdez, who, after                duly sworn. deposes as follows:

         "My name 1s Charley Valdez. I am over twenty-one years of age, of sound mind; capable of

making this affidavit; and personally IlCquainted with the facts herein stated.

         I am employed as Program Supervisor III for the Classltkation and Records Department

("eRn") of the Texas DElpartment of Criminal Justice-Correctional Institut!ons Division, and my

office is located in Huntsville, Texas. I have reviewed time records kept                the eRD

Offender Sergio Daniel     VIJ'II,,"U""e..,   TDCJ II 1342241. eRD maintains these records in the regulIiT

course of business of every offender confined; and it was the regular course of business for an

",.... ,,'A'''''' or representative to TDCJ-CID With knowledge of the act, event, condition, opinion or

diagnoses, recorded to make the record or to transmit information thereof to be reasonably soon

thereafter. Based on my review of these records, the following table contains the current sentence

infonnation for Gonzalez




        6£E:l9£62~sr6:     01
           Gonza)ez t Sergio Daniel TDCJ# 1342241
               2




                                        il3..(;R·278·C                                                 5-3-2054 wilh
                                   ConsoX14lv8 to CIluse   IO-)'e;m   il c23·2002   11·29·2005          469-di1:1'~ of             )·20-2063
                                     1# 04-CR·I:5S6·C                                                  pre'5~nUmCtl
                                           Coonl2


                                                                       0·3-2004     ! O·15·200S    I    J()-;)-~!OO4               10·3·20211


                                                                                                       469-dIIyS of
                                                                                                       pte,seolcncc
                                                                                                         'ilil aredit



 Offender Gonzalez was re<:eived into TOC) custody on 1-11-2006 from Cameron County. Offender
 Gonzalez wss convicted by the 197t~ District Court for the fol lowing:



     j>                Assault Public Servant, under CBuse number 04-CR-!SS6-C (colillt-2), and sentenced to
                                Gonzalez was COI1ViCtf'A for this offense occurring on 10-3-2004, with
           sentenoing on ] 0-15-2005, and sentence to      On 10-3·2004.

     ,.. Aggravated Assault Public Servant, under cause number                and sentenced to IO-years,
         Offender Gonzalez was convicted for this offense occurring on 8-23-2002, with sentencing On
         I 1-2:9-2005, With sentence to run consecutive to cause number 04-CR-1 SS6-C, with 469-days of
           pre~sentence jail   credit.




     )- Aggravated Assault Public          under cause number 04·CR-1586-C (count-}), and sentenced to
                  Offender Gontalez was convicted for this offel)se occurring on 10-3-2004, with
        sentencing on 10·15-2005, and sentence to begin On 10·)-2004.

    ,l;>               Assault Public Servant, under cause number 03-CR-278-C, and sentenced to IO-years.
                     Gonzalez was convicted for this offense occurring Of!            with sentencing on
                        with sentence ro run consecutive to ¢IlU$e number 04-CR-1586-C, with          of
           pre-sentence jail credit

When an                has consecutive sentences, the second sentence will begin when the first sentence ceases to
             A sentence "ceases to          when it is served out in full day-far-day Or on the date a parole
tlp"i<:ttH.tJ'" as the date the offender would have been released to parole but for the second sentence, Texas
GovemmentCoae § S08.150(b),                   Cowan, 171 S.WJd 890 (Tex. Crim. App. 2005),                Kue.ster,
21 S. W.3d 264 (Tex, Cr. App. 2000).

Offender Gonzalez's time was adjusted on 6-3-2015 to reflect that he is                           consecutive sentences and not
concurrent sentences.

This office has not received any Time Dispute Resolution Forms from                               Gonzalez,




                                                                                                                        :WQJ.:/   6S:£j: Sj:02-H-Nnr
Gonzalez, Sergio Damel rOCJ# 1342241
Pagel




                                              Classification aad Records
                                              Tens Department of Criminal Justice
                                              Correctional II'I!!tirutions Division




        SUBSCRIBED At'll> SWORN TO before me, the said Notary Public on thls the 11th   of
June, 20i 5, [0 certifY which witness my hand and seal of office.




                                             Notary Public In and For
                                             The State of TexAS
