Opinion
08-21-2013
EX PARTE MICHAEL BRANDON MOORE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. A-11,588-A IN THE 173RD DISTRICT COURT
FROM HENDERSON COUNTY
Per curiam .
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 pleaded guilty to possession with intent to deliver a controlled substance and was sentenced to ten years' imprisonment.
Applicant contends that he was denied due process in the parole revocation proceedings, because he was not afforded the right to present witnesses on his behalf. See Morrissey v. Brewer, 408 U.S. 471, 489 (U.S. 1972). Applicant alleges that he was sent to SAFP in lieu of revocation, and that he was therefore unable to reopen the parole revocation hearing.
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. 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 addressing the issue of whether Applicant was provided due process in the parole revocation proceedings. The affidavit shall state whether or not Applicant was notified of his rights in the revocation proceedings, and whether he waived his right to a preliminary hearing or final revocation hearing. The affidavit shall state whether or not Applicant was provided with the opportunity to present witnesses on his behalf.
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 first supplement the habeas record with any documents relevant to Applicant's parole revocation, including any written notices or waivers signed by Applicant, and the report from any revocation hearing, if such a hearing was held. The trial court shall then make findings of fact and conclusions of law as to whether Applicant was afforded due process in the parole revocation proceeding. 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 shall be obtained from this Court. Do not publish