Ex Parte Evans

964 S.W.2d 643, 1998 Tex. Crim. App. LEXIS 30, 1998 WL 102945

• Court: Court of Criminal Appeals of Texas
• Decided: March 11, 1998
• Docket: 72876
• Status: Published

Opinions

OPINION

PRICE, Judge.

Applicant filed this post-conviction application for a writ of habeas corpus in the trial court, which was then forwarded to this Court pursuant to Article 11.07 of the Texas Code of Criminal Procedure. Tex.Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 1997).¹ In 1989, Applicant was convicted of involuntary manslaughter and sentenced to ten years in prison. No appeal was taken from this conviction.

Here, Applicant contends that he has been denied credit on his sentence for time that he spent in jail prior to trial, as well as time that he spent in custody pursuant to parole pre-revocation “blue” warrants. Both claims are cognizable under Article 11.07. See Ex parte Harris, 946 S.W.2d 79 (Tex.Crim.App.1997); Ex parte Canada, 754 S.W.2d 660 (Tex.Crim.App.1988).²

Before we reach the merits of Applicant’s claims, however, we must determine whether his claims are proeedurally barred.

I. Applicant’s Claims

This is Applicant’s second application under Article 11.07 pertaining to this cause. In his first application, filed in the trial court on October 24, 1996, Applicant raised various claims concerning a parole revocation hearing which occurred in 1996. Specifically, he argued that his hearing had been untimely, that he had been denied counsel and confrontation at his hearing, and that his hearing officer was biased against him. We denied relief without written order on the findings of the trial court without a hearing. Ex parte Evans, No. 38,043-01 (Tex.Crim.App. March 26, 1997).

On May 8,1997, Applicant filed the instant application in the trial court. In it, he seeks credit for time he spent in jail in 1984, 1992, 1993, and 1995. The trial court initially, on June 18,1997, recommended relief be denied because:

Applicant has failed to include sufficient specific facts establishing that the current claims could not have been presented previously because the factual or legal basis for the claim was unavailable; or that, by a preponderance of the evidence, no rational juror could have found the applicant guilty beyond a reasonable doubt. Tex.Code Crim. Proc. ANN. art. 11.07 § 4(a) (Vernon Supp.1997).

Subsequently, on July 21, 1997, the trial court signed Applicant’s proposed “Findings of Facts and Conclusions of Law.” In these findings, the trial court found that records from the Michigan Department of Corrections and the Harris County Sheriff’s Department corroborate Applicant’s claims. As a result, the trial court found that Applicant has been denied flat time and good time credits on his sentence and recommends that this Court grant relief. On August 29, 1997, the trial court rescinded its initial findings.

II. Article 11.07’s Section Four Procedural Bar

On August 1, 1997, Applicant filed a document entitled “Supplement to Habeas Corpus Providing Information to Meet Criterion of Article 11.07 Section 4(c) Subsection (a)(1).” In it, he argues that his prior writ application was not an attack on the conviction under the meaning of § 4.³ He also claims that he is not attacking his trial in the instant application because he believes the presiding judge at his trial “scrupulously protected Applicant’s State and constitutional rights during all phases of the criminal proceedings.” Applicant states that the term “conviction” should be construed to mean “any and all proceedings pertaining to pretrial events through the sentencing phase.” He argues that claims regarding parole revocation hearings, disciplinary hearings, et cetera, that would not result in a reversal of a conviction but only in a new hearing, cannot be construed as “attacks” on the original conviction. Finally, Applicant states that the trial court must distinguish between allegations that involve an attack on the conviction and allegations that “involve an attack on an entirely different matter which does not have anything to do with the conviction other than sharing the same forum for fact finding.”

A. Defining “Challenge to a Conviction”

We filed and set this cause to determine whether the instant application is barred by Article 11.07, § 4. Specifically, we must determine whether, under § 4, Applicant’s “initial application challeng[ed] the same conviction” as the instant application, since the initial application pertained only to Applicant’s parole revocation hearing.⁴

Article 11.07, § 4, provides in pertinent part as follows:

Sec. 4. (a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.

Art. 11.07, § 4 (emphasis added).

The starting point in analyzing the meaning of a statute is the language of the statute itself. Brown v. State, 943 S.W.2d 35, 36 (Tex.Crim.App.1997). When a statute is clear and unambiguous, we apply the plain meaning of its words. Ramos v. State, 934 S.W.2d 358, 364 (Tex.Crim.App.1996), cert. denied, — U.S. -, 117 S.Ct. 1556, 137 L.Ed.2d 704 (1997); Boykin v. State, 818 S.W.2d 782, 785 (Tex.Crim.App.1991). When, however, the words are ambiguous, or the plain meaning of the words would lead to an absurd result which the legislature could not possibly have intended, we look to extra-textual factors to ascertain the statute’s meaning. State v. Mancuso, 919 S.W.2d 86, 88 (Tex.Crim.App.1996); Boykin, 818 S.W.2d at 785.

The phrases “challenge to a conviction” or “challenging a conviction” are not defined in Article 11.07 or in any other article in the Code of Criminal Procedure, nor are they defined in any other Texas statute. We therefore consider the definitions of the individual words. According to Black’s Law Dictionary, the key words may be defined as follows:

Challenge. To object or except to; to formally call into question ... the sufficiency or validity of an instrument; to call or put in question; to put into dispute; ...

Conviction. In a general sense, the result of a criminal trial which ends in a judgment or sentence that the accused is guilty as charged. The final consummation of the prosecution including the judgment or sentence, or as is frequently the case, the judgment or sentence itself. The stage of a criminal proceeding where the issue of guilt is determined.

BlacK’s Law Dictionary (6th ed.1990).

Although the Code of Criminal procedure does not define “conviction,” the Code significantly narrows the meaning given to “conviction” in the context of a criminal proceeding. Under Article 42.01, for instance, a “judgment” is defined, in part, as “the written declaration of the court signed by the trial judge and entered of record showing the conviction or acquittal of the defendant.” Art. 42.01 § 1 (emphasis added). Throughout Article 42.01 the term “conviction” refers to the jury’s decision of guilt — again, a limited view of the term. Id. at § 1(8), (9), (10), (13), (14) & (27).

This is not, however, the Court’s first attempt to define the term “conviction.” While dissenting, former Judge Teague sagely noted that “considerable force can be put behind the proposition that [conviction] means different things in different statutes.” Ex parte Renier, 734 S.W.2d 349, 365 (Tex.Crim.App.1987) (Teague, J., dissenting) (discussing definition of “final conviction” under Article 11.07). He explained that “an argument can be made that the word means Verdict of guilt’ in some places and ‘judgment on the verdict of guilt’ in others.” Id. (citations omitted). Agreeing with Judge Teague’s observations, we too conclude that this Court has most often “construed the term ‘conviction’ to mean a judgment of guilt and the assessment of punishment.” Id. (citations omitted).

B. Parole Revocations

Based on these definitions, a challenge to a conviction would appear to be limited to claims regarding “the final consummation of the prosecution,” “the judgment or sentence that the accused is guilty as charged,” or “a judgment of guilty and the assessment of punishment.” This interpretation would exclude matters such as parole revocations from the ambit of § 4, because a parole revocation issue does not call into question the validity of the prosecution or judgment; rather, it questions issues arising after the completion of the prosecution.

It is true that claims regarding parole revocation hearings are cognizable under Article 11.07. Board of Pardons and Paroles ex rel Keene v. Court of Appeals for the Eighth District, 910 S.W.2d 481, 483 (Tex.Crim.App.1995). In order to raise these claims, like claims pertaining to trial, an applicant must file his application in the court and county in which he was convicted. Ex parte Woodward, 619 S.W.2d 179 (Tex.Crim.App.1981); Ex parte Alexander, 861 S.W.2d 921, 922 (Tex.Crim.App.1993). Thus, in a general sense, an applicant files a writ application attacking the judgment of conviction which has resulted in his confinement, regardless of the content of his actual claim. Woodward, 619 S.W.2d at 179.

Nevertheless, wé recognized in Woodward that a claim regarding a parole revocation “is not addressed to the validity of the underlying conviction.” Id, Thus, although the claim is cognizable under Article 11.07, § l,⁵ it is not a challenge to the conviction under Article 11.07, § 4, because it does not call into question the validity of the prosecution or the judgment of guilt.

Both the definition of conviction and this Court’s case law regarding writ applications lead us to the conclusion that the procedural bar of § 4 is limited to instances in which the initial application raises claims regarding the validity of the prosecution or the judgment of guilt. It does not apply to claims regarding other matters, such as parole revocations. We conclude that the plain language of § 4 is unambiguous and does not lead to an absurd result.

As a result, this application is not barred by § 4 because Applicant’s prior application did not involve a claim which “challenges the conviction” within the meaning of Article 11.07, § 4.

III. The Merits

Having concluded that this application is not procedurally barred, we now address the merits of Applicant’s claims. Applicant first claims that he has been denied credit on his sentence for time that he served in custody prior to trial, from June 5, 1984, to September 10, 1984. In the trial court’s revised findings, the court finds that Applicant was arrested on June 5, 1984, and the charges were dismissed on September 14, 1984. The court finds that Applicant was in the custody of the Harris County Jail for 97 days.

In his second claim, Applicant contends that he has been denied credit on his sentence for time he spent in custody in Michigan with a Texas blue warrant lodged against him. He seeks credit for the time periods from February 20, 1992, to April 6, 1993, and from July 17, 1995, to sometime in December, 1995. The trial court’s revised findings do not include any specific findings regarding the dates that Applicant was in custody on any blue warrants. The trial court nevertheless recommends that “relief be granted in all respects.”

While this Court is not bound by the findings of a habeas judge in a habeas corpus proceeding, where the findings are supported by the record, they should be accepted by this Court. Ex parte Jarrett, 891 S.W.2d 935, 940 (Tex.Crim.App.1994); Ex parte Turner, 545 S.W.2d 470, 473 (Tex.Crim.App.1977). In the instant case, there is nothing in the record to support any of the trial court’s findings. Although the findings indicate that documents from the Michigan Department of Corrections and the Harris County Sheriffs Department corroborate Applicant’s allegations, our record does not include any such documents. The record is devoid of any evidence of what dates Applicant was in custody prior to trial, what dates he was in custody pursuant to any blue warrants, and whether he is receiving credit on his sentence for any such dates. The only item in the record regarding these claims are Applicant’s sworn allegations. Even sworn allegations are not alone sufficient proof. Ex parte Empey, 757 S.W.2d 771, 775 (Tex.Crim.App.1988).

Therefore, it is this Court’s opinion that additional facts need to be developed and, since this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve the instant issues as set out in Article 11.07, § 3(d), in that it may order affidavits from the Michigan Department of Corrections, the Harris County Sheriffs Department, and the Texas Department of Criminal Justice. In the alternative, the trial court may order depositions, interrogatories, or a hearing.

If the trial court elects to hold a hearing, that court should first decide whether Applicant is indigent. If the trial court finds that Applicant is indigent, and the Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04, appoint an attorney to represent him at the hearing.

Following receipt of additional information, the trial court should make findings of fact as to: (a) what dates Applicant was in custody pursuant to this case prior to trial; (b) what dates Applicant was in custody pursuant to blue warrants for this case; and (c) whether Applicant has received credit on his sentence for any such incarceration. The trial court should also make any further findings of fact and conclusions of law which it deems relevant and appropriate to the disposition of Applicant’s application for habeas corpus relief.

Since this Court does not hear evidence, Ex Parte Rodriguez, 169 Tex.Crim. 367, 334 S.W.2d 294 (1960), this application for a post-conviction writ of habeas corpus will be held in abeyance pending the trial court’s compliance with this opinion. Resolution of the issues shall be accomplished by the trial court within 90 days of the date of this opinion.⁶ 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 opinion.⁷ Accordingly, this ease is abated until we receive additional documentation from the trial court.

1 . Unless otherwise indicated, all references to articles are to those in the Texas Code of Criminal Procedure.

2 . Our previous case law illustrates that when a defendant has been denied credit for jail time to which he is entitled, the preferred practice is for the trial court to enter a nunc pro tunc order authorizing credit for the appropriate time. See, e.g., Ex Parte Kuban, 763 S.W.2d 426, 426 n. 1 (Tex.Crim.App.1989); Shaw v. State, 539 S.W.2d 887, 890 (Tex.Crim.App.1976); Valdez v. State, 479 S.W.2d 927 (Tex.Crim.App.1972).

3 . Applicant also claims the factual basis for one of his claims was unavailable to him at the time he filed his prior writ application.

4 . It is trae that Applicant's prior writ application pertained to this cause number, and the allegations raised in that application were addressed in full on their merits. In Ex Parte Rawlinson, 958 S.W.2d 198 at 199 (Tex.Crim.App.1997), we stated that, in such a case, the subsequent writ would be barred by § 4. However, that language was unnecessary to our decision that a deadly weapon finding is part of a judgment and constitutes an attack on the conviction. We now disavow that language. It seems clear that, regardless of whether the prior claims were addressed on their merits, the issue is whether the prior claims constituted an attack on the conviction.

5 . Section 1 provides that Article 11.07 establishes the procedures "for an application for writ of habeas corpus in which the applicant seeks relief from a felony judgment imposing a penalty other than death.”

6 . In the event any continuances are granted, copies of the order granting the continuance should be provided to this Court.

7 . Any extensions of this time period should be obtained from this Court.