Markham, James Anthony ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-68,645-01

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EX PARTE JAMES ANTHONY MARKHAM, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 13373HC-1 IN THE 6TH DISTRICT COURT FROM LAMAR COUNTY

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   Per curiam.

O R D E R  

   Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the clerk of the trial court transmitted to this Court this application for writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of burglary of habitation and sentenced to twenty (20) years' imprisonment.

Applicant contends that he is eligible for mandatory supervision and is being denied credit for time spent released on parole prior to revocation. Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Mabry, 137 S.W.3d 53 (Tex. Crim. App. 2004); Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact.

The trial court may use any means set out in Tex. Code Crim. Proc. Art. 11.07, § 3(d), in that it shall order the Texas Department of Criminal Justice's Correctional Institutions Division and Parole Division, to file affidavits listing Applicant's sentence begin date, and, the dates of issuance of any parole-revocation warrants leading to the revocation of Applicant's parole. The affidavit should state whether Applicant is serving a sentence for, or has previously been convicted of, an offense which was listed in Tex. Gov't. Code § 508.149(a) at the time of Applicant's revocation. The affidavit should also address how much time was remaining on this sentence on the date that Applicant was released on parole, and how much time Applicant spent on release before the issuance of the parole-revocation warrant. The affidavit should state whether or not Applicant is receiving credit for any of the time spent on parole and, if not, why Applicant is not receiving the credit. Finally, the affidavit should indicate whether or not Applicant has submitted his claim to the time credit resolution system of TDCJ, and if so, the date when the claim was submitted.

The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection. Id. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. C ode Crim. Proc. Art. 26.04.

The trial court shall make findings of fact first as to whether Applicant has properly exhausted his administrative remedies as required by Tex. Gov't. Code § 501.0081(b)-(c). The trial court shall then make findings as to whether Applicant is eligible to earn street time credit, and if so, whether he is entitled to credit for his time spent on release. The trial court shall also make findings as to whether Applicant is receiving the proper amount of time credit for that time. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application will be held in abeyance until the trial court has resolved the fact issues. The issues shall be resolved within 90 days of this order. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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. Any extensions of time shall be obtained from this Court.

Filed: November 7, 2007

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