Ayers, Gary Arthur ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-63,687-01

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EX PARTE GARY ARTHUR AYERS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM TARRANT COUNTY

IN CAUSE NO. 0769443D

IN CRIMINAL DISTRICT COURT ONE

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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 possession of a controlled substance and was sentenced to confinement for five years. No direct appeal was taken.

Applicant contends that his due process rights were violated in a parole revocation hearing. Specifically, he contends that he received no written statement as to the evidence used to revoke his parole.

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 shall order affidavits, depositions, or interrogatories from TDCJ-PD, or it may order a hearing. In the appropriate case the trial court may also rely on its personal recollection.

If the trial court elects to hold a hearing, the court should 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receipt of additional information, the trial court should make findings of fact as to whether Applicant's parole has been revoked and, if so, on what grounds. If the trial court determines that Applicant's parole was revoked, it should make findings of fact as to what evidence was presented to support such revocation and whether Applicant received adequate notice of the reason(s) for such revocation. The trial court should 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 1^ST DAY OF FEBRUARY, 2006.

  DO NOT PUBLISH   

1.

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

2.

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