Junez, Alfonso ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,835-01

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EX PARTE ALFONSO JUNEZ, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM CAUSE NO. C-371-007699-0777994 IN THE 371^ST JUDICIAL DISTRICT COURT OF TARRANT 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 driving while intoxicated as a repeat offender, and punishment was assessed at five years' confinement. No direct appeal was taken.

Applicant contends that he is being improperly denied street time credit. He alleges that he is not an individual "described by" Texas Government Code §508.149(a), and that he therefore qualifies for street time credit under Texas Government Code §508.283(c). According to Applicant, he surpassed the "mid-point" in his sentence while out on supervised release, and is therefore entitled to credit for that time. Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004).

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 Article 11.07, Section 3(d) of the Texas Code of Criminal Procedure, 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 stating the dates when Applicant was released to mandatory supervision or parole and when he was arrested on any pre-revocation warrants. The affidavit should also address whether Applicant has any other convictions which would render him ineligible for street time credit, and if not, why he is not being given credit for this 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.

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 is eligible for street time credit under Texas Government Code §508.283(c), and if not, why not. The trial court shall also make findings as to whether Applicant met the "mid-point" while out on supervised release, and whether he is being credited with all the time to which he is entitled. 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 14^th 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.