Foster, Brian Kevin ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. WR-36,343-02 AND 36,343-03

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EX PARTE BRIAN KEVIN FOSTER, Applicant

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ON APPLICATIONS FOR WRITS OF HABEAS CORPUS

CAUSE NOS. W93-68891-J AND W96-46975-J

IN THE CRIMINAL DISTRICT COURT NO. 3 FROM DALLAS COUNTY

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Per curiam.

O R D E R  

These are applications for writs of habeas corpus which were transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offenses of possession of a controlled substance and delivery of a controlled substance, and punishment was assessed at ten (10) years' confinement. No direct appeals were taken.

Applicant contends that he is eligible for street time credit but has been improperly denied credit against his sentence for a period of supervised release from July 30, 1999 until February 27, 2004.

The trial court has entered an order concluding that Applicant was not eligible for street time credit because he had a new conviction for the offense of aggravated assault and was serving a sentence for that offense at the time his parole was revoked. However, we disagree. We believe that Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Keller, 173 S.W.3d 497 (Tex. Crim. App. 2005). Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum. The trial court shall 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 the appropriate officials of the Texas Department of Criminal Justice, Correctional Institutions Division and Parole Division, 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, 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 Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant has any prior conviction for an offense that would render him ineligible for street time credit, and whether on the issuance date of the warrant or summons initiating the revocation process, the remaining portion of his sentence was greater than the time spent on supervised release. The trial court shall 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. The trial court shall supplement the habeas record with copies of all documents upon which its findings are based.

Because this Court does not hear evidence, Ex parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960), these applications for post-conviction writs 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 forty-five (45) days of the date of this order. ⁽¹⁾ A supplemental transcript containing all affidavits, including the TDCJ-CID and Parole Division 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 ninety (90) days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 1st DAY OF NOVEMBER, 2006.

EN BANC

DO NOT PUBLISH   

1.

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

2.

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