Gilmore, Kenneth Wayne AKA Gilmore, Kenneth ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-57,597-03
EX PARTE KENNETH WAYNE GILMORE, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 893844-B IN THE 248TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
ORDER
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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to burglary of a
habitation and was sentenced to fifty years’ imprisonment.
Applicant contends that he is being denied credit for time spent in prison on a new charge
awaiting a parole revocation hearing in this case. The record indicates that a parole revocation
warrant was issued on May 22, 2013, but was never executed. Applicant was convicted of an
offense committed while he was out on parole on July 10, 2013, and was transferred to TDCJ on
September 9, 2013. His parole was not revoked until November 20, 2014. The record does not
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indicate whether a detainer or hold was in place for this charge at any time while Applicant was
awaiting revocation of parole.
Applicant has alleged facts that, if true, might entitle to relief. Nixon v. State, 572 S.W.2d
699, 701 (Tex. Crim. App. 1978). In these circumstances, additional facts are needed. As we held
in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the
appropriate forum for findings of fact. The trial court shall order the Texas Department of Criminal
Justice’s Office of the General Counsel to file an affidavit stating whether there were any detainers
or holds in place for this cause at any time during the period from the issuance of the pre-revocation
warrant on May 22, 2013, until the parole revocation on November 17, 2014. If there were any
detainers or holds placed on Applicant for this cause, the affidavit shall list the date(s) during which
those detainers or holds were in effect, and shall state whether Applicant is receiving credit for any
such time. The trial court may also order depositions, interrogatories or a hearing. In the appropriate
case, the trial court may rely on its personal recollection. Id. 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 and conclusions of law as to whether Applicant
was subject to a detainer or hold for this cause at any time while he was awaiting revocation of his
parole. If he was subject to any detainers or holds, the trial court shall supplement the habeas record
with copies of any documentation showing the existence of such detainers or holds. The trial court
shall also make findings and conclusions as to whether Applicant is receiving the proper amount of
time credit for that time. The trial court shall also make any other findings of fact and conclusions
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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 90 days of this order. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: August 24, 2016
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