Walls, Michael Lynn ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NOS. WR-64,293-01,-02

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EX PARTE MICHAEL LYNN WALLS, Applicant

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ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS

FROM BROWN COUNTY

IN CAUSE NOS. CR-16-888 & 13,236

IN THE 35^TH DISTRICT COURT

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Per curiam.

O R D E R  

   These are applications for writ of habeas corpus that were transmitted to this Court by the clerk of the trial court pursuant to the provisions of Tex. Code Crim. Proc. art 11.07. Applicant was convicted of the offenses of burglary of a habitation and possession of a controlled substance. He was sentenced to confinement for six years for each offense. No direct appeals were taken.

Applicant contends that he is being denied release to mandatory supervision. The trial court has entered an order concluding "that there are no controverted, previously unresolved facts material to the legality of the Applicant's confinement . . . ." However, we disagree. Applicant has stated facts requiring resolution. Because this Court cannot hear evidence, it is necessary for the matter to be remanded to the trial court for resolution. This trial court shall resolve the factual issues as set out in Tex. Code Crim. Proc. art 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from TDCJ-Parole Division , or it may hold a hearing. In the appropriate case, the trial court may also rely on its personal recollection.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court shall then, pursuant to the provisions of Tex. Code Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court shall make findings of fact as to whether Applicant is being denied release to mandatory supervision and, if so, the reasons for such denial. The trial court shall then make findings of fact as to whether Applicant is eligible for release to mandatory supervision. The trial court shall also make any further findings of fact and conclusions of law it deems relevant and appropriate to the disposition of the application for writ of habeas corpus.

Because this Court does not hear evidence, Ex Parte Rodriquez, 169 Tex.Cr.R. 367, 334 S.W.2d 294 (Tex.Crim.App. 1960), these applications for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. The trial court shall resolve the issues presented within 90 days of the date of this order. ⁽¹⁾ A supplemental transcript containing all affidavits, the transcription of the court reporter's notes from any interrogatories or hearings held, along with the trial court's findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 5^th day of APRIL, 2006.

DO NOT PUBLISH

1. In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

2. Any extensions of this time period shall be obtained from this Court.