## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NO. WR-77,604-03

EX P ARTE VERNON LEE MCBET H, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 031808-01-C- WR IN THE 251S T DIST RICT COURT

F ROM P OTTE R COUNTY

Per curiam . O R D E R Applicant wa s convicted of ag g rava ted assault on a peac e office r and sente nced to twe nty

five y ear s’ imprisonment. The Seventh Court of Appea ls aff irmed his conviction. McBe th v. State , No. 07-9 2 -0 0 3 5 8 -C R (Tex. App. — Amarillo, J uly 14, 1993) (not desig nated for publication). Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district clerk f

orwa rded it to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant contends that his discharg e date for this sentenc e is not being proper ly calc ulated, beca use he is not rec eiving the corr ect amou n t of cre dit for flat time. Applicant was rele ased to parole in this case , and committed a new o ff ense while he was on parole

. Applicant orig inally

rec eived defe rre d adjudication community supervision for the new case , but he was later adjudicate d2

g uilty and sentenc ed to eig hteen y ear s’ imprisonment in the new case , to r un concur rently with the

rema inder of Applicant’s twenty -five y ear sentenc e in this case . I t is unclea r from the rec ord when Applicant’s parole in this case was revoke d, and whether there was a pre- revoc ation war rant in eff ect during any of the time Applicant was in jail pursuant to the new char g es, either befor e his plea in the

new c ase or

befor e his adjudica tion. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. See Ex parte Price , 922 S.W .2d 957 (Tex. Crim. App. 1996); Ex parte Canada , 754 S.W .2d 660 (Tex. Crim. App. 1998)

. Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3(d). The trial court shall order the Texas Depa rtment

o f C ri m i nal J ustice’s Offic e of the Gene ral Counsel to obtain a response from a person wi t h knowledg e of rele vant fac ts. I n developing the rec ord, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant is indige nt and wan t s t o be repr esente d by counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appointed or re tained, the tria l court shall immediately notify this Court of counsel’s name

. The response s h al l state whether Applicant prese nted a claim to the time cre dit resolution sy stem of the Texas Depa

rtment of Criminal J ustice and, if so, the date the claim was prese nted. The response shall then state: (1) Applica

nt’s sentenc e-be g in date, (2) how muc h time was re maining on A pplicant’s sente nce when he w as re lease d, (3) the da tes any pre- revoc ation war

rants we re issued a

nd executed, (4) the da te upon which Applica

nt’s parole was re voked, (5) whether Applicant rec eived cre dit for any time when he wa s subject to prerevoc ation war

rants, and (6) whether Applicant’s discharg e date for this sentenc e is being proper ly calc ulated.3

The trial court shall make finding s of fac t and conclusions of law as to whether , befor e filing this application, Applicant proper ly exhausted his administrative reme dies as required by § 501.0081(b) of the Gover nment Co d e. T h e t rial court shall then deter mine whether Applicant’s maxi mum discharg e date for this sentenc e is being proper ly calc ulated. The trial court may make any other finding s and conc lusions that it deems a ppropriate in response to Applica nt’s claim. The trial court shall make findings of fac t and conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and conclusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: De cembe r 11, 2019 Do not publish