Lewis, Shervin J ( 2012 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. 76,839-01

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EX PARTE SHERVIN J. LEWIS, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 14524 IN THE 2^ND DISTRICT COURT FROM CHEROKEE 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 aggravated assault and sentenced to two years' imprisonment. He did not appeal his conviction.

Applicant contends that the Texas Department of Criminal Justice is calculating his sentence to run consecutive to a different cause number than what is recited in the plea agreement and judgment in this cause. 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 shall order the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit responding to Applicant's allegations, detailing any sentences Applicant is currently serving, and explaining the Department's time calculations. The affidavit should state whether the instant sentence is being calculated to run consecutive to a sentence other than that recited in the judgment. If so, the Department shall explain its legal authority for such calculations.

The trial court may also order depositions, interrogatories or a hearing. It appears that Applicant is represented by counsel. If the trial court determines he is not represented by counsel and elects to hold a hearing, it shall then 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's sentence in the instant case is being calculated by TDCJ in accordance with the judgment. If the sentence is being calculated based on any factors external to the judgment, the trial court's findings shall address the legal authority, if any, for TDCJ's calculations. 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: March 7, 2012

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