IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. 1275320-A IN THE 263RD JUDICIAL DISTRICT COURT
FROM HARRIS COUNTY
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 burglary of a building, and was sentenced to four years' imprisonment.
Applicant contends that he is being improperly denied eligibility for release to mandatory supervision. Applicant alleges that he was informed that he is ineligible for mandatory supervision because of a prior aggravated robbery conviction from 1976 or 1977. Applicant alleges that he has no such conviction, nor any other conviction for an offense that would render him ineligible for mandatory supervision. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). 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 shall order the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit stating whether Applicant is serving a sentence for, or has previously been convicted of an offense which was listed in Tex. Gov't Code § 508.149(a) at the time of his conviction in this case, and if so, shall supplement the record with a copy of the judgment in that case.
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 shall make findings of fact as to whether Applicant was serving a sentence for or had been previously convicted of an offense listed in Tex. Gov't Code § 508.149(a) at the time of his conviction in this case. If not, the trial court shall make findings as to whether Applicant is considered ineligible for release on mandatory supervision, and why. 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: November 2, 2011
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