Montelli, Steven Anthony

• Court: Court of Criminal Appeals of Texas
• Decided: December 16, 2015
• Docket: WR-84,251-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-84,251-01 AND WR-84,251-02

EX PARTE STEVEN ANTHONY MONTELLI, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. W91-03314L(A) AND W91-31553L(A) IN THE CRIMINAL DISTRICT COURT NO. 5 FROM DALLAS 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 these applications for writs of habeas corpus. Ex

parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant pleaded guilty to one charge

of credit card abuse, and one charge of burglary of a habitation. He was sentenced to two concurrent

twenty–five year sentences.

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

mandatory supervision prior to revocation. He also alleges that he is being denied credit for time

spent in an Intermediate Sanctions Facility (“ISF”). Applicant has alleged facts that, if true, might 2

entitle him to relief. Ex parte Spann, 132 S.W.3d 390 (Tex. Crim. App. 2004). Although the trial

court has entered detailed findings of fact and conclusions of law in both cases, there is no affidavit

from TDCJ in the record to support those findings. 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(s) and the dates of issuance of any

pre-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 or mandatory supervision, and how much time Applicant

spent on release before the issuance of the pre-revocation warrant. The affidavit should state

whether Applicant spent time in an ISF, and if so, whether there was a pre-revocation warrant in

effect during that time. The affidavit should state whether or not Applicant is receiving credit for

any of the time spent on parole or mandatory supervision, and whether he is receiving credit for time

spent in an ISF while there was a pre-revocation warrant in effect. 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. 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 3

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

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

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, and for any time he spent in an ISF while a pre-revocation

warrant was in effect. 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.

These applications 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: December 16, 2015 Do not publish