Mitchell-Smith, Jevante Trevion ( 2015 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,242-01
EX PARTE JEVANTE TREVION MITCHELL-SMITH, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 1374104 IN THE 230TH DISTRICT COURT
FROM HARRIS COUNTY
Per curiam.
OPINION
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 originally pleaded guilty to
aggravated robbery in exchange for deferred adjudication community supervision. He was later
adjudicated guilty and sentenced to fifteen years’ imprisonment. Although Applicant explicitly
waived his right to appeal from the adjudication, he did file a motion for reconsideration, which the
trial court treated as a motion for new trial. The trial court set the motion for a hearing, but through
no fault of his own, Applicant was not bench-warranted, and the hearing was not conducted until
2
after the motion for new trial had been overruled by operation of law.
Applicant contends, among other things,1 that he was denied due process when he was unable
to present evidence in support of the motion for new trial before it was overruled by operation of
law. We remanded this application to the trial court for findings of fact and conclusions of law.
Before remand, the trial court entered findings of fact and conclusions of law, recommending
that relief be granted on the basis that Applicant was denied due process. We find that Applicant
is entitled to the opportunity a hearing on his timely-filed motion for new trial after adjudication in
Cause No. 1374104 from the 230th District Court of Harris County. Applicant is ordered returned
to that time at which the trial court has jurisdiction to consider the motion for new trial, and to
conduct a hearing on that motion if necessary. Within ten days of the issuance of this opinion, the
trial court shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be
represented by counsel, the trial court shall immediately appoint an attorney to represent Applicant
for the motion for new trial. All time limits shall be calculated as if the sentence had been imposed
on the date on which the mandate of this Court issues. We hold that, should Applicant desire to have
the trial court consider his motion for new trial, he must take affirmative steps to request a hearing
on the motion for new trial within 30 days after the mandate of this Court issues.
Copies of this opinion shall be sent to the Texas Department of Criminal Justice-Correctional
Institutions Division and Pardons and Paroles Division.
Delivered: October 14, 2015
Do not publish
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This Court has reviewed Applicant’s other claims and finds them to be without merit.