             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-18,467-03


                       EX PARTE ARTURO DELGADILLO, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                CAUSE NO. 16-8200-W1 IN THE 278TH DISTRICT COURT
                             FROM MADISON COUNTY


        Per curiam.

                                              ORDER

        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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of aggravated

assault as a habitual felon and sentenced to twenty-five years’ imprisonment. The sentence was

cumulated with a fifteen year sentence Applicant was already serving in prison.

        Applicant contends that he is being denied proper time-credit on his twenty-five year

sentence due to an incorrect sentence begin date. The case was remanded to obtain an affidavit from

prison officials addressing Applicant’s claims. The habeas record has been supplemented with the

affidavit, and the trial court has entered findings of fact and conclusions of law.
                                                                                                     2

       The trial court finds: “The [Trial] Court found one enhancement Count ‘true’, made no

finding on the second enhancement Count and made no affirmative finding on ‘deadly weapon’

making the range of punishment two (2) years to twenty (20) years. The sentence of twenty-five (25)

years was not available to the Judge.” This finding is not correct. It is true that the judgment does

not indicate findings were made on both enhancement allegations, to which Applicant had pled not

true. However, a transcription of the trial and sentencing is in Applicant’s -01 habeas record. Counsel

admonished Applicant on the record of the habitual punishment range, and the trial judge orally

pronounced at sentencing that Applicant was convicted of the priors as alleged in the indictment. The

indictment alleged two prior felony convictions in sequence. Thus, because the oral pronouncement

of the sentence found the two enhancements paragraphs to be true, the twenty-five-year habitual

felon sentence is not outside the proper punishment range. See Ex parte Madding, 70 S.W.3d 131,

135 (Tex. Crim. App. 2002) (recognizing that a trial court’s pronouncement of sentence is oral, while

the judgment, including the sentence assessed, is merely the written declaration and embodiment of

that oral pronouncement).

       The trial court also finds: “[T]here are two (2) erroneous references to the Applicant serving

a sentence for Aggravated Assault with a Deadly Weapon. This incorrect information affects the time

calculations and distinguishes the difference between aggravated and non-aggravated time for parole

eligibility purposes. [B]ecause of the entries the Applicant forfeited six (6) months and 19 days of

‘street time’ because of the erroneous conviction information being used.... The above conclusion

also applies to 1 year 9 months 7 days forfeited under the erroneous conviction information.” It is

true the prison official’s affidavit does incorrectly state that the conviction in this case was for

aggravated assault with a deadly weapon and not aggravated assault as stated on the judgement
                                                                                                       3

(where there is no affirmative deadly weapon finding). But this mistake, which prison officials

should remedy by correcting its records, does not affect Applicant’s non-eligibility for street-time.

He is street-time ineligible, not because of the erroneous statement in the prison records that a deadly

weapon was used, but because his conviction was for second-degree aggravated assault, which

conviction excludes Applicant from street-time consideration. See TEX . GOV ’T CODE §§ 508.283(b),

508.149(a)(7). Although, the judgment wrongly reflects that the aggravated assault was a third-

degree felony, the statue of conviction made assault causing bodily injury on a prison guard a

second-degree felony. TEX . PENAL CODE § 22.02(a)(2), (c) (1985).

        Finally, according to the affidavit, Applicant’s current maximum discharge date on all

sentences is September 15, 2028. The affidavit indicates that several sentences were cumulated, but

this Court requires further information regarding how the maximum discharge date was calculated.

The trial court shall order the Texas Department of Criminal Justice’s Office of the General Counsel

to file an affidavit discussing how Applicant’s maximum discharge date is being calculated. The

affidavit shall also address whether the mistaken deadly weapon notation in the prison record has

affected the dates Applicant became eligible for consideration for parole and mandatory supervision

and whether the maximum discharge date on the cumulated sentences is affected.

        The trial court may also order depositions, interrogatories or a hearing. 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.

        The trial court may make findings and conclusions as to whether Applicant is receiving the
                                                                                                      4

proper amount of time credit. The trial court may 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.



Filed: April 26, 2017
Do not publish
