Gilmore, Kenneth Wayne AKA Gilmore, Kenneth

• Court: Court of Criminal Appeals of Texas
• Decided: August 24, 2016
• Docket: WR-57,597-03
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-57,597-03

EX PARTE KENNETH WAYNE GILMORE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 893844-B IN THE 248TH DISTRICT COURT FROM HARRIS 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 pleaded guilty to burglary of a

habitation and was sentenced to fifty years’ imprisonment.

Applicant contends that he is being denied credit for time spent in prison on a new charge

awaiting a parole revocation hearing in this case. The record indicates that a parole revocation

warrant was issued on May 22, 2013, but was never executed. Applicant was convicted of an

offense committed while he was out on parole on July 10, 2013, and was transferred to TDCJ on

September 9, 2013. His parole was not revoked until November 20, 2014. The record does not 2

indicate whether a detainer or hold was in place for this charge at any time while Applicant was

awaiting revocation of parole.

Applicant has alleged facts that, if true, might entitle to relief. Nixon v. State, 572 S.W.2d

699, 701 (Tex. Crim. App. 1978). 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 order the Texas Department of Criminal

Justice’s Office of the General Counsel to file an affidavit stating whether there were any detainers

or holds in place for this cause at any time during the period from the issuance of the pre-revocation

warrant on May 22, 2013, until the parole revocation on November 17, 2014. If there were any

detainers or holds placed on Applicant for this cause, the affidavit shall list the date(s) during which

those detainers or holds were in effect, and shall state whether Applicant is receiving credit for any

such time. The trial court may also order depositions, interrogatories or a hearing. In the appropriate

case, the trial court may rely on its personal recollection. Id. 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 make findings of fact and conclusions of law as to whether Applicant

was subject to a detainer or hold for this cause at any time while he was awaiting revocation of his

parole. If he was subject to any detainers or holds, the trial court shall supplement the habeas record

with copies of any documentation showing the existence of such detainers or holds. The trial court

shall also make findings and conclusions as to whether Applicant is receiving the proper amount of

time credit for that time. The trial court shall also make any other findings of fact and conclusions 3

of law that 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 shall

be obtained from this Court.

Filed: August 24, 2016 Do not publish