Wade, Alex Melvin Jr. ( 2008 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-65,555-02

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EX PARTE ALEX MELVIN WADE, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 729136 IN THE 179^TH DISTRICT COURT FROM HARRIS COUNTY

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   Per curiam.

O R D E R  

   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 writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of forgery and sentenced to twenty years' imprisonment. The First Court of Appeals affirmed Applicant's conviction. Wade v. State, 31 S.W.3d 723 (Tex. App.-Houston [1^st] 2000).

Applicant contends that he was arrested on a pre-revocation warrant on July 27, 2007, but he has not been given a preliminary hearing.

The trial court has entered findings of fact and conclusions of law recommending that relief be denied because Applicant remains on pre-revocation status and is also being held on other charges. Tex Gov't Code § 508.254. However, the trial court did not consider whether Applicant was given a timely preliminary hearing to determine that probable cause or reasonable grounds existed which showed that he violated the conditions of his parole. Tex. Gov't Code § 508.2811. Due process requires that a preliminary hearing be held "as promptly as convenient" after a parolee has been arrested on a pre-revocation warrant, to "determine whether there is probable cause or reasonable ground to believe that the arrested parolee has committed the acts that would constitute a violation of parole conditions." Morrissey v. Brewer, 408 U.S. 471, 485 (1972). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In addition, the trial court shall order the Texas Board of Pardons and Paroles to file an affidavit explaining whether it has given Applicant his constitutionally mandated preliminary hearing and, if not, its reasons for failing to give Applicant such a hearing.

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 make findings of fact as to whether Applicant has been given a preliminary hearing and, if not, why he has not been given such a hearing. 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 45 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 60 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 10, 2008

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