## 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-18,231-19

EX P ARTE BIL LY DALE CARTER, Appl icant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. D-1-D C-92-920999- I IN THE 331S T DIST RICT COURT

F ROM TRAVIS COUNTY

Per curiam . O R D E R Pursuant to the provisi o n s o f Ar t icle 11.07 of the Texas Code of Criminal Procedur e, the cler k of the trial court transmitted to this Court this application for a writ of habea s corpus. Ex parte Y oung , 4 1 8 S .W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of robber y and sentenc ed to twenty -five year s’ imprisonment. He did not appea l his conviction. Applicant contends th a

t h e was denied due proce ss during his parole revoc ation proce eding s. Specifica lly , Applicant alleg es that he reque sted counsel to repr esent him at the revoc ation hear ing beca use he has a history of mental illness and was taking multipl e medications, but that no counsel

was ap p o i n t ed

. The habea s rec ord does not contain a response from the State or finding s of fac t from the tria l court.2

A parole e is not absolutely entitled to appointed counsel for a revoc ation hear ing. Gagnon

v. Scarpelli , 411 U.S. 778, 790 (1973). The decision to app o i n t co unsel must be made on a

case -by -ca se basis. Id

. "When a parole e may have difficulty in prese nting his version of a disputed set of fac ts or when the fac ts or mitigating circ umstances are so complex that they can fa i rly be prese nted only by a trained advoca te, counsel should be appointed in a parole revo ca t ion proce eding ." Ex Parte Taylor , 957 S.W .2d 43, 47 (Tex. Crim. App. 1997). Applicant has alleg ed fac ts that, if true, might entitle him to relief

. I n these circ umstances, additional fac ts are neede d. As we held in Ex parte Rodriguez , 334 S.W .2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropr iate forum for finding s of fac t. The trial court shall resolve those issues as set out in Tex. Code Crim. Proc. ar t. 11.07, § 3 (d), in that i t shall order aff idavits, depositions, or interrog atories, or it may order a hear ing. The trial court may obtain aff idavits from Applicant’ s s u p ervising parole office r and the parole revoc ation hear ing office r. I f the trial court ele ct s to hold a hearing , it shall deter mine whether Applicant is indige nt. I f Appli cant is indige nt and wishes to be repres ented by counsel, the trial court shall appoint an attorney to repr esent Applicant at the he aring . T E X . C O D E C R I M . P R O C . art. 26.04. The trial c ourt shall first supplement the re cord w ith c opies of any rele vant documentation from the parole revoc ation proce ss, including the notification of Applicant’s rig hts in the revoc ation proce ss, and the hear ing office r’s repor t from the revoc ation hear ing. Following rec eipt of additional information, the trial court shall make finding s of fac ts as to whether , at the time of the revoc ation hear ing, Applicant had a mental or phy sical defe ct, such that his ability to eff ectively communicate

was compromised such that counsel should have been appointed to repr esent him in his revoc ation proce eding s. The trial court shall also make a ny other finding s of fac t a nd conclusions of law that3

it deems rele vant and a

ppropriate to the dispositi on of Applica nt’s claim for ha

beas c orpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issues shall be resolved within 90 day s of this order

. A supplem en t al t ra n s cript containing all aff idavits and int err og atories or the t ransc ription of t he court repor ter’s notes from any hear ing or deposition, along with the trial court’ s supplemental finding s of fa ct and c onclusions of law, shall be for war ded to this Court withi n 120 day s of the date of this order. Any extensions of ti me must be re quested by

the trial cour

t and shall be obtaine d from this Court.

Filed: Nove mber 22, 2017 Do not publish