Opinion
No. WR-61,552-03
Filed: January 31, 2007. DO NOT PUBLISH.
On Application for A Writ of Habeas Corpus Cause No. 16,137-A In the 253RD District Court From Liberty County.
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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex.Crim.App. 1967). Applicant was convicted of possession of a controlled substance and sentenced to twelve (12) years' imprisonment. No direct appeal was taken. Applicant contends that he is eligible for street time credit but has been improperly denied credit on his sentence for a period of parole from June 29, 1999, until September 26, 2002. The trial court has entered findings of fact and conclusions of law based on evidence in the record which indicates that Applicant is not entitled to the street time credit. Specifically, the habeas record shows that the Texas Department of Criminal Justice, Correctional Institutions Division denied Applicant street time credit because he was convicted of the offense of possession of controlled substance in a drug free zone in 2003. However, this Court has held that a subsequent conviction does not make an Applicant ineligible for street time for an earlier conviction. See Ex parte Keller, 173 S.W.3d 497 (Tex.Crim.App. 2005). 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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), in that it may order the Texas Board of Pardons and Paroles to file an affidavit listing Applicant's sentence begin date, the dates of issuance of any parole-revocation warrants leading to the revocation of such parole or mandatory supervision, and the date any such parole-revocation warrants were withdrawn. 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 Application 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 first as to whether Applicant is eligible to earn street time credit, and if so, whether he is entitled to credit for his time spent on release. The trial court shall also make finding as to whether Applicant is receiving the proper amount of time credit for that time. The trial court shall also make findings of fact as to why two parole-revocation warrants were issued in Applicant's case. 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.