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 2014-02

Duncan, Steven Craig ( 2014 )


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  • IN THE COURT OF CRIMINAL APPEALS

    OF TEXAS  



    NO. WR-80,719-01




    EX PARTE STEVEN CRAIG DUNCAN, Applicant




    ON APPLICATION FOR A WRIT OF HABEAS CORPUS

    CAUSE NO. A-06-5246-CR(HC1) IN THE 36TH DISTRICT COURT

    FROM ARANSAS 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted in Aransas County of assaulting a public servant (cause no. A-06-5246-CR) and sentenced to eight years’ imprisonment. He was also convicted of burglary of a habitation in San Patricio County (cause no. S-05-3292-1-CR) and sentenced to eight years’ imprisonment. There were no direct appeals.

                Applicant states that he was released to parole on both sentences and that both paroles were later revoked. According to Applicant, both paroles were revoked due to his being charged with a new offense, unauthorized use of a motor vehicle, in Tyler County (cause no. 11,930), but he states he was acquitted by a jury of that offense. Applicant also states that he waived a preliminary revocation hearing in each of his paroles while the new UUMV charge was pending, but he states his paroles were later revoked without any hearings even though he did not waive or did not knowingly waive his right to have final parole revocation hearings in each case. Minimum due process requires notice and an opportunity to be heard before a “neutral and detached” hearing body, such as a traditional parole board, and the reasons for revocation. See Morrissey v. Brewer, 408 U.S. 471 (1972). There is no information in the writ record from the Texas Board of Pardons and Paroles.

                Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Patterson, 993 S.W.2d 114, 115 (Tex. Crim. App. 1999). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact.

                The trial court shall order the Parole Board to file an affidavit responding to Applicant’s claims by indicating whether Applicant was given written notice of the alleged violations of both paroles and whether he was given the opportunity for revocation hearings in both paroles. The Board shall also indicate whether Applicant was informed of the reasons for revocation in both paroles. In addition to obtaining the affidavit, the trial court may order depositions, interrogatories or a hearing. In the appropriate case, the trial court may also 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. Code Crim. Proc. art. 26.04. The trial court shall make any 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

     

    Filed: February 12, 2014

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