Stivers, Edward Eugene ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,853-01

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EX PARTE EDWARD EUGENE STIVERS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. F89-88442-N IN THE 195^TH JUDICIAL DISTRICT COURT OF DALLAS 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 pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant pleaded guilty to the offense of burglary of a habitation, and punishment was assessed at twenty-five years' confinement. No direct appeal was taken.

Applicant contends that he is being improperly denied credit for almost four years he spent out on parole, and that the denial of such credit is impermissibly extending his sentence.

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. 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 may resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may 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 has any convictions which would render him ineligible for street time credits, whether Applicant has ever been released on parole, and if so what the dates of his release, arrest, and revocation were. The affidavit should also address whether Applicant received time credit toward the expiration of his sentence for the period of time he spent out on parole. 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 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's current burglary of a habitation conviction renders him ineligible for street time credit, and if so, on what basis. If not, the court shall make findings as to whether Applicant has other convictions which would render him ineligible to earn street time credit. If the trial court finds that Applicant does not have any such conviction(s), the court shall make findings as to whether Applicant met the "halfway point" on his sentence while out on parole, and if so whether he was given street time credit for the time he was on parole. 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.

Because this Court does not hear evidence, Ex Parte Rodriquez, 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 issues 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⁾

IT IS SO ORDERED THIS THE 21^ST DAY OF JUNE, 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.