Williams, Wilbert Lee Jr.

• Court: Court of Criminal Appeals of Texas
• Decided: May 25, 2011
• Docket: WR-55,135-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-55,135-02

EX PARTE WILBERT LEE WILLIAMS, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 620320-B IN THE 209TH DISTRICT COURT

FROM HARRIS 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 was convicted of Burglary of a Building and sentenced to 20 years' imprisonment. There was no direct appeal.

Applicant alleges that TDCJ is not giving him proper credit on his sentence. Citing to Ex parte Canada, 754 S.W.2d 660 (Tex. Crim. App. 1988), which states, "[A]ny time spent in confinement pursuant to the execution of a pre-revocation warrant cannot be denied a parolee," 754 S.W.2d at 668, Applicant argues that he is being denied flat time for time spent in jail after a January 2005 parole pre-revocation warrant was issued for his arrest. He states that he was arrested on another offense on March 12, 2005, while the pre-revocation warrant was active, and that the warrant remained active until his eventual revocation on or about May 9, 2005. Applicant properly exhausted his administrative remedies with the TDCJ through its time-dispute resolution system, see Tex. Gov't Code § 501.0081, and since filing the writ Application, Applicant was released to mandatory supervision. However, the flat-time issue is not mooted by this supervised release because, if Applicant is entitled to the requested relief and it is granted, the eventual discharge date on his sentence would change.

A TDCJ classifications representative filed an affidavit that is in the writ record provided to this Court. The affiant states that the pre-revocation warrant issued on January 24, 2005, and that the arrest date was originally listed in TDCJ records as March 12, 2005. This arrest date was later changed to May 10, 2005. The reason for the change is not elaborated upon, however. In a separate affidavit, also in the writ record before this Court, a TDCJ parole division representative indicates that Applicant was interviewed by parole division officials and waived a revocation hearing on May 3, 2005, a week before TDCJ indicates Applicant was arrested. This fact suggests that the change in arrest dates may not be correct.

Applicant has alleged facts that, if true, might entitle him to relief. See Ex parte Canada, 754 S.W.2d at 668. 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 make further findings regarding the validity of Applicant's Ex parte Canada time-credit claim, including findings regarding TDCJ's reason for changing the arrest date from March 12, 2005, to May 10, 2005, and findings regarding whether Applicant is entitled to the time-credit in dispute. The trial court shall also make any other findings of fact that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d), and 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.

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, 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: May 25, 2011

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