Belcher, James Earl Sr. ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-55,481-02

---

EX PARTE JAMES EARL BELCHER, SR., Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

TRIAL COURT CAUSE NO. B-17,038-B

IN THE 161^ST JUDICIAL DISTRICT COURT

FROM ECTOR COUNTY

---

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 aggravated sexual assault, and punishment was assessed at confinement for forty years. No direct appeal was taken.

Applicant contends that he was denied due process of law during his parole revocation proceedings. Specifically, he states he was denied his right to counsel that attached due to a speech impediment and other mental and physical disabilities that rendered him unable to communicate effectively. Additionally, he claims he was denied due process because he is actually innocent of the new charges which were used to revoke his parole, and the evidence adduced at his revocation hearing conclusively shows he was in the custody of his half-way house when the alleged offense upon which his revocation was based occurred.

This Court remanded the cause to the trial court for findings of facts and conclusions of law concerning the above issues. Thereafter, the trial court issued findings of facts and conclusions of law, but those findings and conclusions do not fully address the issues upon which this case was remanded. Additionally, the trial court concluded this case was a subsequent application, however, Applicant has never challenged the merits of his conviction.

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 still need to be developed. 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 shall order affidavits, depositions, or interrogatories, or it may order a hearing.

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 facts as to whether, at the time of the revocation hearing, Applicant had a speech impediment, or mental or physical defect, such that his ability to effectively communicate was compromised such that counsel should have been appointed to represent him in his revocation proceedings. The court shall order an affidavit from Applicant's supervising parole officer and the parole revocation hearing officer to effectuate this purpose.

The court shall also determine whether Applicant's claim of actual innocence of the sexual assault charges used to revoke his parole has merit. Specifically, the trial court shall make findings of facts concerning whether or not Applicant was at his assigned half-way house at the time he was alleged to have committed a sexual assault. To aid in making this determination, the court shall obtain affidavits from the parole division, the supervisor in charge of the half-way house, and Applicant's former supervisor at Denny's restaurant. The trial court may also order a hearing.

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 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 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 21 DAY OF June, 2006.

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.