Olvera, Louis Angel ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-38,788-04

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EX PARTE LOUIS ANGEL OLVERA, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. A10042-8811 IN THE 64^TH DISTRICT COURT

HALE 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 was convicted of the offense of delivery of a controlled substance, and punishment was assessed at eighteen (18) years' confinement. No direct appeal was taken.

Applicant contends that he is eligible for street time credit pursuant to Tex. Gov't Code § 508.283 but has been improperly denied credit against his sentence for time served on supervised release.

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. See Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). Therefore, it is this Court's opinion that additional facts need to be developed and because this Court does not 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 conviction for an offense that would render him ineligible for street time credit, whether Applicant's supervised release was revoked after the effective date of Tex. Gov't Code Ann. 508.283(c), and whether on the issuance date of the warrant or summons initiating the revocation process, the remaining portion of Applicant's 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), 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 (90) 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 twenty (120) days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE TWENTY-FIRST 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.