Henderson, Gerald Dewayne

• Court: Court of Criminal Appeals of Texas
• Decided: June 17, 2009
• Docket: WR-20,417-04
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-20,417-04 EX PARTE GERALD DEWAYNE HENDERSON, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. W86-70562-P(C) IN THE 203^RD JUDICIAL DISTRICT COURT

FROM DALLAS COUNTY

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 pleaded guilty to aggravated robbery, and was sentenced to twenty-five years' imprisonment.

Applicant contends that he was denied due process during the revocation of his mandatory supervision, because he was not afforded a preliminary hearing and because his request to have counsel appointed was denied. Applicant alleges that he has a history of mental illness and was under psychiatric treatment in jail while awaiting revocation, but that he was unable to present these facts at the revocation hearing because he did not have counsel. Applicant also alleges that his parole officer testified at the revocation hearing that he did not have a history of mental illness. 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 may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). 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 first supplement the habeas record with any available documents pertaining to Applicant's 2008 revocation proceedings, including the notification of rights in the revocation process, and the report of the hearing officer. The trial court shall then make findings of fact as to whether Applicant requested counsel to assist him at the revocation hearing, and if so, whether his request was denied, and as to what reason was given for the denial of counsel. The trial court shall make findings as to whether Applicant was afforded due process in the revocation proceedings. 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 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. If any continuances are granted, a copy of the order granting the continuance shall be sent to this Court. 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 order. Any extensions of time shall be obtained from this Court.

Filed: June 17, 2009

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