White, Edward Lee ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-63,566-02

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EX PARTE EDWARD LEE WHITE, Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

CAUSE NUMBER 15,577-A IN THE 258TH

JUDICIAL DISTRICT COURT POLK COUNTY

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   Per curiam.

O R D E R

This is an application for a writ of habeas corpus that was transmitted to this Court by the clerk of the trial court pursuant to the provisions of Article 11.07, Section 3, of the Texas Code of Criminal Procedure. Ex Parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pled guilty to aggravated assault and was sentenced to confinement in prison for a period of seven years. There was no direct appeal.  

In this application for a writ of habeas corpus, Applicant states that Texas prison officials are not giving him proper time-credit on his sentence. The trial court has not entered findings of fact and conclusions of law, and it is this Court's opinion that additional information is needed before this Court can render a decision, including an affidavit from Texas prison officials addressing whether Applicant is receiving credit on this sentence for the 177 days awarded in the judgment.  

Because this Court does not hear evidence, though, the trial court is the appropriate forum. Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960). Thus, the trial court shall resolve this issue as set out in Article 11.07, Section 3(d), of the Texas Code of Criminal Procedure, in that it shall order the Classification and Records Division of the Texas Department of Criminal Justice to file an affidavit addressing this issue. The trial court may also order depositions, interrogatories, or hold a hearing. In the appropriate case, the trial court may also rely on its personal recollection.

If the trial court elects to hold a hearing, the court 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 Article 26.04 of the Texas Code of Criminal Procedure, appoint an attorney to represent him at the hearing. Following the receipt of additional information, the trial court shall make findings of fact and conclusions of law regarding whether Applicant has properly exhausted this claim under Section 501.0081 of the Government Code and whether he has received the proper credits on his sentence. The trial court may also make any further findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's application for habeas corpus relief.

Further, because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d at 294, this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this order. ⁽¹⁾ 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. ⁽²⁾  

DELIVERED: AUGUST 30, 2006

DO NOT PUBLISH

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

2.

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