JOHNSON, OTIS TRACY Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: May 18, 2016
• Docket: WR-23,244-04
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-23,244-04

EX PARTE OTIS TRACY JOHNSON, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 28691-C-3 IN THE 89TH DISTRICT COURT FROM WICHITA 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 burglary of a

habitation and sentenced to twenty years’ imprisonment.

Applicant contends that he is being improperly held pursuant to a pre-revocation warrant,

when he should have discharged his sentence in this case. Applicant was apparently arrested for new

charges. However, because of the pre-revocation warrant, Applicant cannot make bond. 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. 2

The trial court shall order the Texas Department of Criminal Justice’s Office of the General

Counsel to file an affidavit listing Applicant’s sentence begin date, the date upon which Applicant

was released to parole or mandatory supervision, and the dates of issuance and execution of any

parole-revocation warrants. If Applicant is being held pursuant to a pre-revocation warrant, the

affidavit should state whether Applicant has been afforded a preliminary hearing or a final revocation

hearing, or whether he has waived the right to either or both hearings. The affidavit should state

whether or not Applicant’s parole or mandatory supervision has been revoked. If Applicant’s parole

or mandatory supervision has been revoked, the affidavit should state whether Applicant received

credit for time spent on parole or mandatory supervision, and if not, why not.

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

case, the trial court may rely on its personal recollection. TEX . CODE CRIM . PROC. Art. 11.07 §3(d).

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

is currently confined, and if so, when he was arrested and whether he is confined pursuant to a pre-

revocation warrant or on new charges. If Applicant is being held on a pre-revocation warrant, the

trial court shall make findings of fact as to when the warrant was issued and executed, and as to how

long Applicant has been held pursuant to the revocation warrant. The trial court shall make findings

as to whether Applicant has been afforded a preliminary hearing or a final revocation hearing, and

if not, as to whether Applicant waived his right to either or both hearings. If Applicant’s parole or

mandatory supervision has been revoked, the trial court shall make findings as to whether Applicant 3

has received all the credit to which he is entitled on this sentence, and as to what the maximum

discharge date is for this sentence. 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 30 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 60 days of the date of this order. Any extensions of time shall be

obtained from this Court.

Filed: May 18, 2016 Do not publish