IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-74,171-01
EX PARTE RUSSELL LYNN STRACENER, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 0719499 IN THE 8TH JUDICIAL DISTRICT COURT
FROM HOPKINS COUNTY
Per curiam.
O R D E R
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to injury to a child in exchange for five years’ deferred adjudication community supervision. His guilt was later adjudicated, and he was sentenced to twelve years’ imprisonment.
Applicant contends, inter alia, that he was denied due process when the Board of Pardons and Paroles advised him that his release on parole would be subject to sex offender conditions, although he was not convicted of a sexual offense. The record reflects that Applicant was provided with written notice of the possibility of sex offender conditions, and of his right to submit a statement and documentation on his own behalf to give reason why the sex offender conditions should not be imposed on March 17, 2009. However, the habeas record does not contain any further information regarding whether Applicant was provided with disclosure of the evidence being presented against him; a hearing at which Applicant was permitted to be heard in person, present documentary evidence, and call witnesses; the right to confront and cross-examine witnesses, unless good cause is shown why this right should not be granted; an impartial decision maker; and a written statement by the factfinder as to the evidence relied on and the reasons it attached sex offender conditions to his parole. Meza v. Livingston, 2010 U.S. App. LEXIS 10321, 50-51 (5th Cir. Tex. May 20, 2010).
Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). 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 shall make findings of fact as to whether ever been convicted of a sex offense. If he has not been convicted of a sex offense, the trial court shall make findings as to whether Applicant has been provided with disclosure of the evidence being presented against him; a hearing at which Applicant was permitted to be heard in person, present documentary evidence, and call witnesses; the right to confront and cross-examine witnesses, unless good cause is shown why this right should not be granted; an impartial decision maker; and a written statement by the factfinder as to the evidence relied on and the reasons it attached sex offender conditions to his parole. If Applicant was released to parole, the trial court shall make findings as to whether sex offender conditions were imposed. The trial court shall make findings as to whether Applicant was provided with the due process required by Meza in the determination of whether sex offender conditions would be imposed as a condition of his parole. The trial court shall 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. Any extensions of time shall be obtained from this Court.
Filed: August 25, 2010
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