Opinion
No. WR-65,248-01
Delivered: August 30, 2006. DO NOT PUBLISH.
On Application for a Writ of Habeas Corpus, Cause No. F35016 in the 18th District Court, Johnson County.
ORDER
This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of possession of a controlled substance, and upon the revocation of community supervision punishment was assessed at eighteen (18) months' confinement. No direct appeal was taken. Applicant contends that he has been denied credit toward his sentence for time served in jail prior to the revocation of community supervision. The trial court has entered an order concluding "that there are no controverted, previously unresolved issues of fact material to the legality of the Applicant's confinement." However, these findings are not supported by the record. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Canada, 754 S.W.2d 660, 668 (Tex.Crim.App. 1988). Therefore, it is this Court's opinion that additional facts need to be developed, and that because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from the appropriate officials of the Texas Department of Criminal Justice, or it may order a hearing. In the appropriate case the trial court may 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 Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing. Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant has satisfied the statutory exhaustion requirement. Tex. Gov't Code Ann. § 501.0081. The trial court shall then make findings as to whether the Texas Department of Criminal Justice has credited Applicant's sentence with time served in jail prior to the revocation of community supervision. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus. The trial court shall supplement the habeas record with copies of all documents upon which its findings are based. Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294 (Tex.Crim.App. 1960), 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 ninety (90) days of the date 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 returned to this Court within one hundred twenty (120) days of the date of this order. IT IS SO ORDERED.
In the event any continuances are granted, copies of the order granting the continuance shall be provided to this Court.
Any extensions of this time period shall be obtained from this Court.