Reed, Michael ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR 68,384-02

---

EX PARTE MICHAEL REED, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 42,203-B IN THE 78^TH DISTRICT COURT FROM WICHITA COUNTY

---

   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 possession of a controlled substance: methamphetamine (200-400 grams) and sentenced to ten years' imprisonment.

Applicant contends that he is being denied mandatory supervision review due to a previous robbery conviction for which he successfully completed probation. Applicant has alleged facts that, if true, might entitle him to relief. Tex. Gov't Code §508.149. 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, to file an affidavit stating whether or not Applicant is being denied mandatory supervision review and if so, listing the reason for that denial. 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).

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 as to whether or not Applicant is being denied mandatory supervision review, and if so, the reason for the denial. 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: October 31, 2007

Do not publish