Smith, Leonard Earl ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-65,478-01

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EX PARTE LEONARD EARL SMITH, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS IN CAUSE NO. 1993-48-C IN THE 54^TH DISTRICT COURT OF McLENNAN COUNTY

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   Per curiam.



O R D E R  

This is a post-conviction application for a writ of habeas corpus forwarded to this Court pursuant to Tex. Code Crim. Proc. art. 11.07, § 3. Applicant was convicted of two counts of delivery of cocaine and his punishment was assessed at confinement for fifteen years. There was no appeal from these convictions.  

Applicant contends that he has not received credit for time he was out of custody on parole from 1995 to 2005. The trial court has found that Applicant was released on parole on February 27, 1995 with a projected expiration date of November 29, 2007, and that his parole was subsequently revoked based on a parole violator warrant issued on September 26, 2003. The court concluded that Applicant was not entitled to credit for the time he was out of custody on parole because on the date the parole violator warrant was issued he had not served at least one-half of his remaining sentence. However, the findings show Applicant had approximately 153 months left to serve on these sentences on the date he was released, and had served approximately 103 months on parole on the date the parole violator warrant was issued, so had served more than one-half of his remaining 153 months.

It is this Court's opinion that additional facts need to be developed, and since this Court cannot hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum. The trial court may resolve those issues as set out in Article 11.07, § 3(d), TEX.CODE CRIM.PROC., in that it may order affidavits, depositions, or interrogatories from both the Criminal Institutions and Parole Divisions of the Texas Department of Criminal Justice, or it may order a hearing.

If the trial court elects to hold a hearing the court should first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and Applicant desires representation by counsel, the trial court shall then appoint an attorney to represent him at the hearing pursuant to the provisions of Article 26.04, TEX.CODE CRIM.PROC.

Following the receipt of additional information the trial court shall make additional findings of fact as to whether Applicant has been denied credit for the period he was out of custody. If Applicant has been denied credit for the period he was not in custody, the court shall also determine the reason such credit was denied, including the elements of any prior conviction deemed to render Applicant ineligible for such credit. Finally, the trial court shall determine whether Applicant requested this credit from the office of time credit resolution and the dates any such credit was requested or denied, and should also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

This application for post-conviction writ of habeas corpus will be held in abeyance pending the trial court's compliance with this order. Resolution of the issues shall be accomplished by the trial court within 60 days of the date of this order. ⁽¹⁾ A supplemental transcript containing any affidavits, exhibits, or transcription of the court reporter's notes from any evidentiary hearing, along with the trial court's supplemental findings of fact and conclusions of law, shall be returned to this Court within 90 days of the date of this order. ⁽²⁾

DELIVERED: September 13, 2006

DO NOT PUBLISH

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

2.

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