IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
ON APPLICATION FOR WRIT OF HABEAS CORPUS
CAUSE NUMBER W94-35604-L(A) IN THE CRIMINAL
DISTRICT COURT NO. 5 DALLAS COUNTY
Per curiam.
O R D E R
This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was indicted for burglary of a habitation as a habitual offender. The burglary was alleged to have been committed on July 30, 1994. Applicant waived his right to a jury trial and entered a plea of no contest before the court. The State agreed to abandon the second enhancement paragraph of the indictment, and Applicant agreed to plea true to the remaining enhancement paragraph. Following the presentation of evidence and argument, the trial court sentenced Applicant to a term of fifteen years in prison. Applicant's conviction was affirmed on direct appeal. Jones v. State, No. 04-95-00299-CR (Tex. App.--San Antonio, delivered August 16, 1995, no pet.).
In this application for a writ of habeas corpus, Applicant argues, inter alia, that the Texas Department of Criminal Justice (TDCJ) is not properly considering him for release to mandatory supervision and that his plea agreement was breached. The judgment reflects that the burglary of a habitation felony for which Applicant was convicted was classified as a first-degree offense. The law in effect at the time the offense was committed indicates that all burglaries of a habitation were first-degree felonies. Tex. Penal Code § 30.02 (1994). The punishment range with the enhancement paragraph was fifteen to ninety-nine years or life in prison. Tex. Penal Code § 12.42 (c) (1994).
The offense of burglary of a habitation with intent to commit theft, however, is not included in the list of offenses under Section 508.149(a) of the Texas Government Code, which renders an inmate ineligible for release on mandatory supervision. Ex parte Thompson, 173 S.W.3d 458 (Tex. Crim. App. 2005). Here, the record does not contain a copy of the indictment to which Applicant pled. On the current record, then, it is not possible to tell if the burglary for which Applicant was convicted was with the intent to commit theft or a felony other than theft. Also, the record does not contain any of the plea papers in Applicant's case.
Thus, it is this Court's opinion that more information is needed before this Court can render a decision on Applicant's claim, including a copy of the indictment to which Applicant pled, the plea papers concerning Applicant's plea, and an affidavit from TDCJ concerning the reasons for denying Applicant's release to mandatory supervision. Because this Court cannot hear evidence, Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum. The trial court shall resolve these issues as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure. In addition to ordering an affidavit from TDCJ and providing the necessary documents, the trial court may order additional affidavits, depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may also rely on its personal recollection.
If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief.
Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. (1) 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 returned to this Court within 120 days of the date of this order. (2)
DELIVERED: January 25, 2006.
DO NOT PUBLISH
1. 2.