Barber, Richard Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: September 7, 2022
• Docket: WR-91,638-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-91,638-01

EX PARTE RICHARD WAYNE BARBER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 91-036A IN THE 207TH DISTRICT COURT FROM CALDWELL COUNTY

Per curiam.

ORDER

Applicant was convicted of burglary of a habitation and sentenced to thirty years’

imprisonment. Applicant filed this application for a writ of habeas corpus in the county of

conviction, and the district clerk forwarded it to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant says that he is eligible for and that the Parole Board must release him to mandatory

supervision (MS) on this sentence, but he says the Parole Board is not doing so because he is also

serving a concurrent sentence for which he is not being released to discretionary mandatory

supervision (DMS). The Parole Board provided a response. This Court has since issued a decision

in Ex parte Rivers, No. WR-44,786-06, 2022 WL 1565617 (Tex. Crim. App. del. May 18, 2022),

which addresses the issue. 2

The record should be developed. The trial court is the appropriate forum for findings of fact.

TEX . CODE CRIM . PROC. art. 11.07, § 3(d). The trial court shall order the Board of Pardons and

Paroles’s Office of the General Counsel to obtain a response from a person with knowledge of

relevant facts addressing whether the Board is applying this Court’s holding in Rivers to Applicant’s

supervised release. The trial court shall make findings of fact and conclusions of law regarding

Applicant’s claim, and the trial court may make any other findings and conclusions that it deems

appropriate.

The trial court shall make findings of fact and conclusions of law within ninety days from

the date of this order. The district clerk shall then immediately forward to this Court the trial court’s

findings and conclusions and the record developed on remand, including, among other things,

affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from

hearings and depositions. See TEX . R. APP . P. 73.4(b)(4). Any extensions of time must be requested

by the trial court and obtained from this Court.

Filed: September 7th, 2022 Do not publish