Webb, Henry Cleveland ( 2009 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-71,619-01

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EX PARTE HENRY CLEVELAND WEBB, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. C-213-008691-0353199 IN THE 213TH DISTRICT COURT FROM TARRANT 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 was convicted of burglary of a habitation and sentenced to ten (10) years' imprisonment.

Applicant alleges that he was informed that his maximum expiration date for this offense was January 13, 2009, when he was released on mandatory supervision in 2008. He alleges that he never violated the terms of his supervised release but that his date has maximum expiration has nonetheless been moved to January 13, 2010. He alleges that it was unlawful for the TDCJ to extend the term of his sentence. Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact.

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 Office of the General Counsel to file an affidavit listing Applicant's sentence begin date and the dates of issuance of any parole-revocation warrants leading to the revocation of such parole or mandatory supervision. The affidavit shall state the dates Applicant was released on mandatory supervision and the dates Applicant's mandatory supervision release was revoked. The affidavit shall state whether the TDCJ informed Applicant that his projected maximum expiration date was January 13, 2009, when the TDCJ released him on mandatory supervision in 2008 and, if so, whether the aforementioned projected maximum expiration date was accurate. The affidavit shall state whether Applicant's projected maximum expiration date has been moved to January 13, 2010, and, if so, why the projected maximum expiration date has been moved.

The trial court may also order depositions, interrogatories or a hearing. In the appropriate case, the trial court may rely on its personal recollection. Id. 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 as to the dates Applicant was placed on mandatory supervision release and the dates Applicant's mandatory supervision release was revoked. The trial court shall make findings of fact as to whether the TDCJ informed Applicant that his maximum expiration date was January 13, 2009, when the TDCJ released him on mandatory supervision in 2008 and, if so, whether the aforementioned projected maximum expiration date was accurate. The trial court shall make findings of fact as to whether Applicant's projected maximum expiration date has been moved to January 13, 2010, and, if so, why the projected maximum expiration date has been moved. 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: March 18, 2009

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