Ramon, Juan S. Jr. ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-28,290-04

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EX PARTE JUAN S. RAMON, JR., Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2005CR2950 IN THE 226^TH JUDICIAL DISTRICT COURT FROM BEXAR 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 possession of a controlled substance and sentenced to two years' imprisonment.

Applicant contends that he is being improperly designated as ineligible for mandatory supervision because of a 1990 conviction for aggravated assault of a peace officer. At the time of Applicant's earlier offense, aggravated assault of a peace officer was a third degree felony unless a deadly weapon was used during the offense. See Tex. Pen. Code §22.02(c)(1987). Although Texas Government Code §508.149(a) lists "a first degree felony or a second degree felony under Section 22.02, Penal Code" as an offense rendering an inmate ineligible for mandatory supervision, third degree aggravated assault is not listed in that section. Furthermore, in 1994 the offense of assault of a peace officer moved from the aggravated assault statute (Tex. Pen. Code §22.02) to the assault statute (Tex. Pen. Code §22.01). Under either the aggravated assault statute at the time of Applicant's offense or the current assault statute, the offense would be a third degree felony unless the person uses or exhibits a deadly weapon during the commission of the assault (or causes serious bodily injury, under the current statute). Applicant's 1990 conviction for aggravated assault of a peace officer did not contain a deadly weapon finding.

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), in that it may order the Texas Department of Criminal Justice, Institutional Division to file an affidavit stating whether Applicant is serving a sentence for, or has previously been convicted of, an offense which is listed in Tex. Gov't Code § 508.149(a). If Applicant is serving a sentence for or has previously been convicted of such an offense, the trial court shall supplement the record with a copy of the indictment and judgment in that cause.

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 Application 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 first as to whether TDCJ currently considers Applicant eligible for mandatory supervision. If Applicant is not eligible for mandatory supervision, the trial court shall make findings as to the basis for Applicant's ineligibility. 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: February 14, 2007

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