Sterling, Jimmy Lawrence ( 2007 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-68,689-01

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EX PARTE JIMMY L. STERLING, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 21438-361-A IN THE 361^ST JUDICIAL DISTRICT COURT FROM BRAZOS 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 pleaded guilty to delivery of a controlled substance and was sentenced to twenty years' imprisonment.

Applicant contends that he is being denied credit for time spent in a substance abuse felony punishment facility (SAFPF). The trial court finds that Applicant is not entitled to credit for time spent in such a facility as a condition of probation. Ex parte Stover, 946 S.W.2d 343 (Tex. Crim. App. 1997). Although the trial court is correct, there is nothing in the record to show whether Applicant's time in the SAFPF was a condition of his parole or mandatory supervision, or whether Applicant was placed in the SAFPF prior to revocation of parole or mandatory supervision. Applicant has alleged facts which, if true, might entitle him to relief. Ex parte Canada, 754 S.W.2d 660, 668 (Tex. Crim. App. 1988).

It is this Court's opinion that additional facts need to be developed, and that because this Court cannot hear evidence, the trial court is the appropriate forum. Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997). The trial court may use any means set out in Tex. Code Crim. Proc. Art. 11.07, § 3(d), in that it shall order the Texas Department of Criminal Justice's Correctional Institutions Division and Parole Division to file affidavits addressing whether Applicant was in custody pursuant to pre-revocation warrants during either of the time periods he attended the SAFPF in 2003 and 2004. The affidavits shall also address whether Applicant received time credit for any period(s) of time he was in custody under pre-revocation or blue warrants. Finally, the affidavits should indicate whether or not Applicant has submitted his claim to the time credit resolution system of TDCJ, and if so, the date when the claim was submitted. The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection.

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. C ode Crim. Proc. Art. 26.04.

The trial court shall make findings of fact first as to whether Applicant has properly exhausted his administrative remedies as required by Tex. Gov't. Code § 501.0081(b)-(c). The trial court shall then make findings as to whether there were pre-revocation or blue warrants in effect during any of the time Applicant spent in the SAFPF, and if so whether Applicant is receiving the proper amount of time credit for that time. 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: November 7, 2007

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