Murray, Lee Cornelius ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-39,846-03

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EX PARTE LEE CORNELIUS MURRAY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W-49243-01-B IN THE 181ST DISTRICT COURT FROM POTTER 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 burglary of a habitation and sentenced to seventy years' imprisonment, to be served consecutively with Applicant's sentence upon revocation of parole for an earlier burglary conviction. The Seventh Court of Appeals affirmed his conviction. Murray v. State, No. 07-04-0440-CR (Tex. App. - Amarillo, September 19, 2005, no pet.)

Applicant contends that the trial court's order stacking this seventy-year sentence on his earlier sentence for burglary was improper, because his parole was never revoked for the earlier conviction. 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 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. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant's parole in cause number 8649 from the 46^th Judicial District Court of Wilbarger County was ever revoked, and if so, when. If Applicant's parole in that cause has not been revoked, the court shall make findings as to how TDCJ is calculating the sentence begin date for this Potter County conviction, and how it is calculating Applicant's maximum discharge date. 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 ninety 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 one hundred and twenty days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: September 20, 2006

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