Opinion
WR-69,968-08
11-15-2023
EX PARTE CHRISTOPHER WAYNE SEMIER, Applicant
Do not publish
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 89-DCR-019854 HC4 IN THE 268TH DISTRICT COURT FROM FORT BEND COUNTY
ORDER
Per curiam.
Applicant pled guilty to sexual assault and the trial court placed him on deferred-adjudication community supervision for seven years. Subsequently, on the State's motion, the trial court revoked Applicant's deferred-adjudication community supervision, adjudicated his guilt, and assessed his punishment at five years' imprisonment. Applicant did not file a direct appeal. Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See Tex. Code Crim. Proc. art. 11.07.
While this sentence has discharged, Applicant contends that he is being denied release to parole on a separate cause due to the Texas Department of Criminal Justice (TDCJ) incorrectly classifying Applicant as an offender who sexually assaulted a victim that was 15 years of age based on his conviction in this cause. He claims this mis-classification is impacting his parole release due to child safety zone restrictions. If true, this is a collateral consequence from this conviction. The trial court ordered TDCJ to provide an affidavit addressing the issue, which TDCJ did. The trial court then found that Applicant was "never denied parole because he was classified as a 'child molestor' [sic] or based on his victim being 15 years old at the time of the sexual assault." However, the affidavit is not responsive to the raised issue and does not address whether Applicant's release to parole is being delayed (and constructively denied) based on the age of his victim in this case. Accordingly, the record should be further developed. The trial court is the appropriate forum for findings of fact. Tex. Code Crim. Proc. art. 11.07, § 3(d). The trial court shall order the Texas Department of Criminal Justice's Office of the General Counsel to obtain a response from a person with knowledge of relevant facts. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him at the hearing. See Tex. Code Crim. Proc. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The response shall state whether Applicant has been classified for parole consideration purposes as an offender who sexually assaulted a victim that was 15 years of age based on this conviction. If so, the response shall state the reasons for this classification. The response shall then state whether Applicant's pending parole release is being delayed or denied due to child safety zone restrictions or any other release parameter that is affected by this conviction. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claim.
The trial court shall make supplemental findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See Tex. R. App. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court.