Aleman, Robert Earle

• Court: Court of Criminal Appeals of Texas
• Decided: May 24, 2006
• Docket: WR-63,971-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. 63,971-01 EX PARTE ROBERT EARLE ALEMAN, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM THE 36TH DISTRICT COURT OF ARANSAS COUNTY

IN CAUSE NUMBER A00-0022-CR

Per curiam.

O R D E R

This is an application for a writ of habeas corpus which was transmitted to this Court pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07. Applicant was convicted of the offense of robbery, and punishment was assessed at ten years' confinement. Applicant's conviction was affirmed on appeal. Aleman v. State No. 13-04-00219-CR (Tex. App. --Corpus Christi, delivered July 21, 2005, no pet.).

Applicant contends, inter alia, that he has been denied time credit toward the expiration of his sentence for time spent in confinement (1) in Brevard County, Florida by virtue of a detainer in the instant cause between February 1, 2004, and March 26, 2004; (2) awaiting transport to prison between April 22, 2004, and June 7, 2004; and (3) following his arrest pursuant to the State's motion to revoke probation. Applicant also contends that he has been denied time credited him by the trial court.

The trial court has not entered findings of fact or conclusions of law. We believe that Applicant has alleged facts that, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and because this Court does not hear evidence, the trial court is the appropriate forum. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall order the Texas Department of Criminal Justice, Correctional Institutions Division to file an affidavit addressing (1) whether Applicant was confined in Brevard County, Florida by virtue of a detainer in the instant cause between February 1, 2004, and March 26, 2004, and if so, whether he received time credit toward the expiration of his sentence for this period of time; (2) whether Applicant was confined awaiting transport to prison between April 22, 2004, and June 7, 2004, and if so, whether he received time credit toward the expiration of his sentence for this period of time; (3) whether Applicant was confined following his arrest pursuant to the State's motion to revoke probation, and if so, whether he received time credit toward the expiration of his sentence for this period of time; and (4) whether Applicant has received the time credited him by the trial court. The trial court may also order depositions, interrogatories, or a hearing. In the appropriate case the trial court may also rely on its personal recollection.

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 findings of fact as to (1) whether Applicant was confined in Brevard County, Florida by virtue of a detainer in the instant cause between February 1, 2004, and March 26, 2004, and if so, whether he received time credit toward the expiration of his sentence for this period of time; (2) whether Applicant was confined awaiting transport to prison between April 22, 2004, and June 7, 2004, and if so, whether he received time credit toward the expiration of his sentence for this period of time; (3) whether Applicant was confined following his arrest pursuant to the State's motion to revoke probation, and if so, whether he received time credit toward the expiration of his sentence for this period of time; and (4) whether Applicant has received the time credited him by the trial court. 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.

Because this Court does not hear evidence, Ex Parte Rodriquez, 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 90 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 120 days of the date of this order. ⁽²⁾

IT IS SO ORDERED THIS THE 24^th DAY OF MAY, 2006.

EN BANC

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.