IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
CAUSE NO. W90-32297Q (A) IN THE 204TH JUDICIAL DISTRICT COURT
FROM DALLAS 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 murder and was sentenced to twenty years' imprisonment.
Applicant contends that he is being denied credit for pre-sentencing jail time, the granting of which was part of his plea agreement, and that he is being illegally confined past his discharge date because of the denial of such time credit. The trial court finds that Applicant has already been granted credit for all the time requested by way of a judgment nunc pro tunc. Although the habeas record contains a copy of a motion for judgment nunc pro tunc, it does not contain an order granting such motion, or a judgment nunc pro tunc granting Applicant the credit. Furthermore, Applicant is still incarcerated, with a discharge date indicating that he has not received credit for the time in question. 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 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. C ode Crim. Proc. art. 26.04.
The trial court shall make findings of fact first as to whether Applicant is entitled to the credit for pre-sentencing jail time which he seeks. If so, the trial court shall make findings as to whether there has been a ruling made on Applicant's motion for judgment nunc pro tunc, and if not, why not. If the trial court has signed an order granting or denying the motion for judgment nunc pro tunc, the trial court shall supplement the record with a copy of such order. If the trial court signed an order granting the motion for judgment nunc pro tunc, copies of the order shall be sent to the Texas Department of Criminal Justice-Correctional Institutions Division and Pardons and Paroles Division. 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: February 9, 2011
Do not publish