SIMON, GUS STEVEN Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: December 7, 2016
• Docket: WR-85,879-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-85,879-01, WR-85,879-02 & WR-85,879-03

EX PARTE GUS STEVEN SIMON JR., Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 2014R-0110-A, 2014-0111-A & 2014-0112-A IN THE 155TH DISTRICT COURT FROM AUSTIN 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 was convicted of two charges

of manufacture or delivery of a controlled substance in a drug free zone and delivery of marihuana

in a drug free zone. He was sentenced to six years’ imprisonment in each case. He did not appeal

his convictions.

Applicant contends that prison authorities are not crediting his sentences with all of the pre-

sentence jail time he was awarded under the plea agreements in these cases. It appears that applicant 2

was awarded pre-sentence jail time credits that pre-dated his offense dates. Ex parte Wickware, 853

S.W.2d 571, 573 (Tex. Crim. App. 1993).

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 shall order

the Texas Department of Criminal Justice’s Office of the General Counsel to file an affidavit

addressing how Applicant’s time for these sentences is being calculated, and whether he is being

credited with all of the pre-sentence jail time credits listed on his judgments. If his sentences are not

being credited with all applicant time specified, the affidavit shall explain the calculations. 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 make findings of fact and conclusions of law as to whether Applicant

pleaded guilty pursuant to an agreement that provided that Applicant would be awarded specific pre-

sentence jail time credits. If so, the court shall make findings determining whether specific

performance of the plea agreement is possible. 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.

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 3

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 must

be requested by the trial court and shall be obtained from this Court.

Filed: December 7, 2016 Do not publish