Ware, Robert Dale ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-12,094-08

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EX PARTE ROBERT DALE WARE, Applicant

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ON APPLICATION FOR WRIT OF HABEAS CORPUS

FROM CAUSE NO. 18,121-A IN THE 30^TH JUDICIAL DISTRICT COURT OF

WICHITA 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 Article 11.07 of the Texas Penal Code. Ex Parte Young, 418 S.W.2d 824 (Tex. Crim. App. 1967). Applicant was convicted of rape, and was sentenced to twenty years' imprisonment. Applicant's conviction was affirmed on direct appeal. Ware v. State, 628 S.W.2d 249 (Tex. App. - Ft. Worth, delivered February 10, 1982, pet. ref'd.)

Applicant contends that he has been denied time credit toward the expiration of his sentence for time spent in confinement pursuant to a pre-revocation or blue warrant.

The trial court has not entered findings of fact or conclusions of law. Because we believe that 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. Applicant has alleged facts which, if true, might entitle him to relief. Ex parte Canada, 754 S.W.2d 660, 668 (Tex. Crim. App. 1988). Therefore, it is this Court's opinion that additional facts need to be developed, and that because this Court cannot hear evidence, the trial court is the appropriate forum.

The trial court shall resolve those issues as set out in Article 11.07, Section 3(d) of the Texas Code of Criminal Procedure, in that it shall order the Texas Board of Pardons and Paroles and/or the Texas Department of Criminal Justice, Institutional Division to file an affidavit addressing whether Applicant was in custody pursuant to a pre-revocation warrant prior to the revocation of his supervised release on December 5, 2003. If a pre-revocation warrant was issued prior to that date, the affidavit shall address the date any such warrant was issued and executed. The affidavit shall also address whether Applicant received time credit for the period of time he was in custody under any such pre-revocation or blue warrant. The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may 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 the 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 as to whether Applicant was ever in custody pursuant to a pre-revocation or blue warrant, and if so, whether Applicant received the correct amount of credit for the period of time he spent in confinement. The trial court shall also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

Because this Court does not hear evidence, Ex Parte Rodriguez, 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. Resolution of the issue shall be accomplished by the trial court within ninety 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 one hundred and twenty 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.