Harvey, Donny Joel

• Court: Court of Criminal Appeals of Texas
• Decided: August 20, 2008
• Docket: WR-9,425-23
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

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NO. WR-9,425-23

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EX PARTE DONNY JOEL HARVEY, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 14,130-H IN THE 23^RD DISTRICT COURT

FROM BRAZORIA COUNTY

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           Per curiam.

O R D E R

            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 escape and sentenced to four years’ imprisonment.

            Applicant contends, inter alia, that he was improperly denied the assistance of counsel in a 2006 release revocation hearing. He also contends that he was prevented by his parole officer and the hearing officer from contacting and presenting witnesses and obtaining and presenting documentary evidence in defense and mitigation.

            Applicant has alleged facts that, if true, might entitle him to relief. Morrissey v. Brewer, 408 U.S. 471 (1972). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In addition, the trial court shall obtain copies of the notice of release revocation, the revocation hearing report, and any other documentation of the revocation proceedings that would be helpful to resolving Applicant’s contentions, above, from the Texas Department of Criminal Justice’s Office of the General Counsel.

            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 as to whether Applicant was properly denied the assistance of counsel and whether Applicant was prevented from presenting witnesses and documentary evidence in defense and mitigation. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant’s claims 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. A transcript containing copies of the release revocation paperwork and all affidavits and interrogatories or the transcription of the court reporter’s notes from any hearing or deposition, along with the trial court’s findings of fact and conclusions of law, shall be returned to this Court within 120 days of the date of this order. Any extensions of time shall be obtained from this Court.

Filed: August 20, 2008

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