Belcher, Ex Parte James Earl Sr.

• Court: Court of Criminal Appeals of Texas
• Decided: December 13, 2006
• Docket: AP-75,569
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. AP-75,569 EX PARTE JAMES EARL BELCHER, SR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. B-17,038 IN THE 161^ST JUDICIAL DISTRICT COURT

FROM ECTOR COUNTY

Per curiam.

O P I N I O N

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 aggravated sexual assault of a child and sentenced to forty years' imprisonment. He did not appeal his conviction.

Applicant contends that he was erroneously denied appointed counsel at his parole revocation hearing. A parolee is not absolutely entitled to appointed counsel for a revocation hearing. Gagnon v. Scarpelli, 400 U.S. 778, 790, 93 S. Ct. 1756, 1763, 36L. Ed. 2d 656, 666 (1973). The decision to appoint counsel must be made on a case-by-case basis. Id. "When a parolee may have difficulty in presenting his version of a disputed set of facts or when the facts or mitigating circumstances are so complex that they can fairly be presented only by a trained advocate, counsel should be appointed in a parole revocation proceeding." Ex Parte Taylor, 957 S.W.2d 43, 47 (Tex. Crim. App. 1997).

Applicant alleges that he has had a stuttering problem his entire life. He had requested an attorney at his parole revocation hearing due to his problem in communicating. His request was denied by the hearing officer. This Court remanded to the trial court for a hearing and findings on whether or not Applicant's speech problem entitled him to appointed counsel at the time of his revocation hearing. The trial court determined that counsel should have been appointed. We agree.

We find, therefore, that Applicant is entitled to a new parole revocation hearing with the assistance of appointed counsel. The officials at the Texas Department of Criminal Justice, parole division are ordered to give Applicant a new parole revocation hearing after appointing counsel to represent him. The trial court has also entered findings that based on the evidence presented to that court, Applicant may be actually innocent of the grounds for which his parole was revoked. If, after Applicant's new hearing, he is found to have not violated his parole conditions, he shall be immediately returned to parole status.

Delivered: December 13, 2006

Do Not Publish