LUCKEY, VON STEPHEN Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: October 1, 2014
• Docket: WR-82,056-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-82,056-02

EX PARTE VON STEPHEN LUCKEY, JR., Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. F93-61875-S IN THE 282ND DISTRICT COURT FROM DALLAS COUNTY

Per curiam. Price, J., not participating.

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 possession with

intent to deliver cocaine and was sentenced to thirty years’ imprisonment. The Fifth Court of

Appeals affirmed his conviction in Luckey v. State, No. 05-95-00031-CR (Tex. App.–Dallas April

18, 1996, no pet.).

Applicant contends that he is being denied credit for time spent released on parole prior to

revocation. Applicant has alleged facts that, if true, might entitle him to relief. Ex parte Spann, 132 2

S.W.3d 390 (Tex. Crim. App. 2004). 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 listing Applicant’s sentence begin date and the dates of issuance of any

parole-revocation warrants leading to the revocation of such parole or mandatory supervision. The

affidavit should state whether Applicant is serving a sentence for, or has previously been convicted

of, an offense which was listed in TEX . GOV ’T CODE § 508.149(a) at the time of Applicant’s

revocation. The affidavit should also address how much time was remaining on this sentence on the

date that Applicant was released on parole, and how much time Applicant spent on release before

the issuance of the parole-revocation warrant. The affidavit should state whether or not Applicant

is receiving credit for any of the time spent on parole. Finally, the affidavit should indicate whether

or not Applicant has submitted his claim to the time credit resolution system of TDCJ, and if so, the

date when the claim was submitted.

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 . C ODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether Applicant

has properly exhausted his administrative remedies as required by TEX . GOV ’T CODE § 501.0081(b)-

(c). The trial court shall then make findings and conclusions as to whether Applicant is eligible to 3

earn street time credit, and if so, whether he is entitled to credit for his time spent on release. 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 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: October 1, 2014 Do not publish