Opinion
NO. WR-86,823-01
06-07-2017
EX PARTE RICHARD GERARD KIMBALL, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 75396-A IN THE 252ND DISTRICT COURT FROM JEFFERSON COUNTY
Per curiam. KEASLER, J., not participating. ORDER
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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant originally pleaded guilty to driving while intoxicated in exchange for eight years' community supervision. His community supervision was later revoked and he was sentenced to eight years' imprisonment.
Applicant contends that he is being denied credit for time spent released on parole prior to revocation. Specifically, Applicant alleges that he was denied credit because he failed to meet his "mid-point" while out on parole under Section 508.283(c) of the Texas Government Code. However, after his parole was revoked, Applicant sought and obtained a judgment nunc pro tunc, awarding him additional pre-sentencing time credit. Applicant then requested a re-calculation of his street time credit using the new sentence begin date, but his request was denied. Applicant now alleges that with the additional pre-sentencing jail time credit, he would have met his mid-point while out on parole, and would therefore be entitled to street time credit for the period prior to his parole revocation.
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. 1960), 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 listing Applicant's sentence begin date and the dates of issuance of any parole-revocation warrants leading to the revocation of such parole or mandatory supervision. The affidavit should state 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 Applicant's revocation. The affidavit should also address how much time was remaining on this sentence on the date that Applicant was released on parole, and how much time Applicant spent on release before the issuance of the parole-revocation warrant. The affidavit should state whether or not Applicant is receiving credit for any of the time spent on parole. The affidavit should state whether, taking into account the additional credit granted to Applicant in the 2016 judgment nunc pro tunc, he would have successfully met his "mid-point" while out on parole before the pre-revocation warrant was issued.
The trial court may use any means set out in TEX. CODE CRIM. PROC. art. 11.07, § 3(d). 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 and conclusions of law as to whether Applicant is eligible to earn street time credit, and if so, whether he would have met his mid-point while out on parole if his additional pre-sentencing time were taken into account. 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must be requested by the trial court and shall be obtained from this Court. Filed: June 7, 2017
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