Hillyer, Donald E. ( 2005 )

  

  IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-19,519-05

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EX PARTE DONALD E. HILLYER, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 74086 IN THE 299TH JUDICIAL DISTRICT COURT

OF TRAVIS COUNTY

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Per curiam.   O R D E R  

This is an application for a writ of habeas corpus which was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of aggravated sexual assault, and punishment was assessed at confinement for twenty-eight years. No direct appeal was taken.

Applicant contends, inter alia, that he has been denied credit from August 6, 2001, to December 21, 2001, and from March 19, 2003, to August 20, 2003, for time spent confined in an intermediate sanction facility, which was served before the parole revocation warrant was withdrawn.

The trial court has entered findings of fact or conclusions of law finding that the Parole Board was allowed to impose confinement in an intermediate sanction facility as a condition of Applicant's mandatory supervision. However, we do not believe that those factual findings are sufficient to completely resolve the issues presented. Because Applicant has stated facts requiring resolution and because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution of those issues. The trial court may 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 TDCJ 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, it 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.

The trial court should then make findings of fact as to when the parole revocation warrants were withdrawn and whether these warrants were withdrawn before or after the times spent in the intermediate sanction facility. The trial court should 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.

Because this Court does not hear evidence, Ex Parte Rodriquez, 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. The trial court shall resolve the issues presented within 90 days of the date of this order. ⁽¹⁾ A supplemental transcript containing any affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 14^th DAY OF DECEMBER, 2005.

EN BANC

DO NOT PUBLISH

1. In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2. Any extensions of this time period should be obtained from this Court.