Martin, Danny Wayne ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-64,886-02

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EX PARTE DANNY WAYNE MARTIN, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. CR00034 IN THE 102^ND JUDICIAL DISTRICT COURT FROM RED RIVER 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 retaliation and sentenced to six years' imprisonment.

Applicant contends that he was denied due process in the parole revocation process, because he was denied the opportunity to confront and cross-examine adverse witnesses, and because he never received written notification of the evidence relied on and reasons for revoking parole. See

Morrissey v. Brewer, 408 U.S. 471, 489 (U.S. 1972). This Court remanded the matter to the trial court for resolution of these issues and for findings of fact on February 21, 2007.

On April 4, 2007, this Court received a supplement from the trial court in response to the remand order. The supplement did not contain findings of fact, but only an affidavit from Applicant's parole officer. The affidavit states that Applicant's parole was revoked on the basis of his plea of guilty to a misdemeanor assault charge. There is nothing in the supplement addressing Applicant's claims that he was denied the opportunity to confront witnesses, or that he was not provided with a written copy of the hearing officer's statement as to the evidence relied on and reasons for revoking Applicant's parole.

Applicant has alleged facts that, if true, might entitle him to relief. 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).

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. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant was afforded the opportunity to confront and cross-examine witnesses against him at the parole revocation hearing, or whether the revocation was had solely on the arrest report of a police officer who was not present at the hearing. The trial court shall make findings as to whether the hearing officer made a written statement as to the evidence relied on and reasons for revoking Applicant's parole, and if so, the trial court shall supplement the habeas record with a copy of such statement. The trial court shall also make findings as to whether Applicant was ever provided a copy of any such statement. 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: April 25, 2007

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