McBride, Michael Shane ( 2006 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

---

NO. WR-46,990-03

---

EX PARTE MICHAEL SHANE McBRIDE, Applicant

---

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 19,938 IN THE 253^RD JUDICIAL DISTRICT COURT

LIBERTY COUNTY

---

   Per curiam.



O R D E R  

This is a post-conviction application for a writ of habeas corpus filed pursuant to Article 11.07, TEX. CODE CRIM. PROC. Applicant was convicted of possession of a controlled substance and punishment was assessed at imprisonment for eight (8) years. No appeal was taken from this conviction.

Applicant contends that he is eligible for street time credit but has been improperly denied credit against his sentence for time served on his most recent period of supervised release. The trial court has entered an order finding that Applicant received the correct time credit and concluding that "Applicant's writ is frivolous and Applicant is not entitled to any relief." However, this finding and conclusion are not supported by the record. See Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). Therefore, it is this Court's opinion that additional facts need to be developed and because this Court cannot hear evidence, the trial court is the appropriate forum.

Specifically, this record contains an affidavit from the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID) which acknowledges that Applicant's conviction does not render him ineligible for street time credit. This affidavit reflects that Applicant's sentence of eight years began on October 18, 1998, and that Applicant was released on mandatory supervision on May 3, 2002. He was then returned to custody following an arrest on new charges. The TDCJ-CID affidavit does not state when the parole revocation proceedings were initiated, but Applicant asserts that the revocation warrant was issued on September 2, 2004. That date is consistent with the information in the TDCJ-CID affidavit. It appears that Applicant may be entitled to relief under this Court's decision in Ex parte Spann, 132 S.W.3d 390, 392-93 (Tex. Crim. App. 2005). In an abundance of caution, however, we have determined that TDCJ-CID and the Parole Division should be given the opportunity to provide further information concerning the date the parole warrant was issued, and both Applicant and the State an opportunity to provide whatever additional information they deem appropriate to resolve this issue.

The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it may order affidavits, depositions, or interrogatories from the appropriate officials of the Texas Department of Criminal Justice, Correctional Institutions Division and Parole Division, or it may order a hearing.

If the trial court elects to hold a hearing, the court shall first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent and Applicant desires to be represented by counsel, the trial court will 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 a finding of fact as to the issuance date of the warrant or summons initiating the revocation process. See Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). 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. The trial court shall supplement the habeas record with copies of all documents upon which its findings are based.

Because this Court does not hear evidence, Ex Parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1960), this application for a 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 forty-five (45) days of the date of this order. ⁽¹⁾ 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 sixty (60) days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 13th DAY OF SEPTEMBER, 2006.

DO NOT PUBLISH

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

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