Caraway, Randal Franklin

• Court: Court of Criminal Appeals of Texas
• Decided: March 17, 2021
• Docket: WR-47,593-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-47,593-03

EX PARTE RANDAL FRANKLIN CARAWAY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 19072C IN THE 91ST DISTRICT COURT FROM EASTLAND COUNTY

Per curiam.

ORDER

Applicant was convicted of murder and sentenced to ninety-nine years’ imprisonment.

During the punishment phase, the parties stipulated that Applicant had acted under the influence of

sudden passion arising from adequate cause, resulting in a reduction of the degree of offense from

first degree to second degree murder. Because Applicant’s punishment was enhanced using prior

convictions, the ninety-nine year sentence assessed by the jury was within the applicable punishment

range for the offense. The Eleventh Court of Appeals affirmed Applicant’s conviction. Caraway

v. State, No. 11-96-00189-CR (Tex. App. — Eastland December 17, 1998) (not designated for

publication). Applicant has previously challenged this conviction two times by way of habeas

corpus, and this Court has denied relief and dismissed some of Applicant’s previous claims as barred by Texas Code of Criminal Procedure article 11.07 §4.

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 contends that he received ineffective assistance of trial counsel and entered an

involuntary “plea” regarding the sudden passion issue. Those claims are barred by Article 11.07

§4. However, Applicant also alleges that he is being denied due process by the retroactive

application of Texas Government Code § 508.149(a) to deny him eligibility for release to mandatory

supervision. Applicant alleges that he only became aware of this issue recently when he submitted

claims to the time credit resolution system of the Texas Department of Criminal Justice and received

responses from that office indicating that this conviction makes him ineligible for mandatory

supervision pursuant to Section 508.149(a).

On the date of this offense, in 1994, Section 508.149 of the Texas Government Code did not

exist. Rather, eligibility for mandatory supervision and parole were governed by Articles 42.12 and

42.18 of the Texas Code of Criminal Procedure. Although the version of Article 42.12 in effect on

the date of the offense listed murder as an offense requiring the inmate to serve half the sentence in

flat time or thirty years before becoming eligible for parole, second degree murder was not an offense

listed in Article 42.18 as being ineligible for mandatory supervision in 1994.

Applicant has alleged facts that, if true, might entitle him to relief. Accordingly, 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 Texas Department of Criminal Justice’s

Office of the General Counsel to obtain a response from a person with knowledge of relevant facts.

In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the

trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent him

at the hearing. See TEX . CODE CRIM . PROC. art. 26.04. If counsel is appointed or retained, the trial

court shall immediately notify this Court of counsel’s name.

The response shall state whether Applicant is considered eligible for mandatory supervision,

and if not, why not. If Applicant is currently considered to be ineligible for mandatory supervision,

the response shall state whether he has always been so classified, or whether he has only recently

been considered ineligible for mandatory supervision.

The trial court shall make findings of fact and conclusions of law as to whether Applicant

was classified as ineligible for mandatory supervision at the time he filed his previous habeas

applications, and as to whether Applicant could have raised this claim in those previous applications.

The trial court shall then determine whether Applicant is currently considered to be eligible for

mandatory supervision, and if not, why not. The trial court may make any other findings and

conclusions that it deems appropriate in response to Applicant’s claims.

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: March 17, 2021 Do not publish