Carter, Billy Dale

• Court: Court of Criminal Appeals of Texas
• Decided: November 22, 2017
• Docket: WR-18,231-19
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-18,231-19

EX PARTE BILLY DALE CARTER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. D-1-DC-92-920999-I IN THE 331ST DISTRICT COURT FROM TRAVIS COUNTY

Per curiam.

ORDER

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 a writ of habeas corpus. Ex parte

Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robbery and

sentenced to twenty-five years’ imprisonment. He did not appeal his conviction.

Applicant contends that he was denied due process during his parole revocation proceedings.

Specifically, Applicant alleges that he requested counsel to represent him at the revocation hearing

because he has a history of mental illness and was taking multiple medications, but that no counsel

was appointed. The habeas record does not contain a response from the State or findings of fact

from the trial court. 2

A parolee is not absolutely entitled to appointed counsel for a revocation hearing. Gagnon

v. Scarpelli, 411 U.S. 778, 790 (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 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. 1960), the trial court is the appropriate forum for findings of fact. 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 affidavits,

depositions, or interrogatories, or it may order a hearing. The trial court may obtain affidavits from

Applicant’s supervising parole officer and the parole revocation hearing officer. 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 . CODE CRIM . PROC. art. 26.04.

The trial court shall first supplement the record with copies of any relevant documentation

from the parole revocation process, including the notification of Applicant’s rights in the revocation

process, and the hearing officer’s report from the revocation hearing. Following receipt of additional

information, the trial court shall make findings of facts as to whether, at the time of the revocation

hearing, Applicant had a mental or physical defect, such that his ability to effectively communicate

was compromised such that counsel should have been appointed to represent him in his revocation

proceedings. The trial court shall also make any other findings of fact and conclusions of law that 3

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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time must

be requested by the trial court and shall be obtained from this Court.

Filed: November 22, 2017 Do not publish