## 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-23,244-04

EX P ARTE OTIS TRACY JOHNSON, JR., Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 28691-C-3 IN THE 89TH DIST RICT COURT

F ROM WICHITA 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 , 418 S.W .2d 824, 826 (Tex. Crim. App. 1 9 6 7 ). Ap p l icant was convicted of burg lary of a habitation and sente nced to twe nty y ear s’ imprisonment. Applicant contends that he is being improperly held pursuant to a pre- revoc ati o n wa rra nt, when he should have discharg ed his sentenc e in this case . Applicant was appar ently arr ested for new char g es. Howeve r, because of t he pre-re vocation warra nt, Applicant cannot make bond. 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 cour t is the appropria te forum f or finding s of fa ct.2

The trial court shall order the Texas Depa rtment of Criminal J ustice’s Offic e of the Gene ral Counsel to file an aff

idavit listing Applicant’s sentenc e beg in date, the date upon which Applicant

was rele ased to parole or mandatory supervision, and the dates of issuance and execution of any parole -re vocation war

rants. I f Applicant is being held pursuant to a pre- revoc ation war ra n t , t h e aff idavit s h o u ld state whether Applicant has been aff orded a preliminary hear ing or a final revoc ation hear ing, or whether he has waived the rig ht to either or both hear ings. The aff idavit should state whether or not Applicant’s parole or mandatory supervision has been revoke d. I f Applicant’s parole or manda tory

supervision has bee n revoke d, the af fidavit should state whether Applicant rec eived

cre dit for time spent on parole or manda tory supervision, and if not, why not. The trial co u rt may also order depositions, interrog atories or a hearing

. I n the appropriate

case , the trial court may rely on its persona l rec ollection. T E X . C O D E C R I M . P R O C . Art. 11.07 §3(d). I f the trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indigen t

. I f Applicant is indige nt and wishes to be repr esente d by counsel, the tri al co u rt s h all appoint an attorney to repre sent Applicant a t the hear ing. T E X . C O D E C R I M . P R O C . art. 26.04. The trial court shall make findings of fac t and co n clus ions of l aw as to whether Applicant is curr ently confine d, and if so, when he was arr ested and whether he is confine d pursuant to a prerevoc ation war

rant or on new char g es. I f Applicant is be ing held on a pre- revoc ation war rant, the trial court shall make finding s of fac t as to when the war rant was issued and executed, and as to how long Applicant has been held pursuant to the revoc ation war rant. The trial court shall make finding s

as to whether Applicant has been aff orded a preliminary

hear ing or

a final revoc ation hear ing, and if not, a s to w hether Applicant waived his rig ht to e ither or both he aring s. I f Applicant’s parole or mandatory supervision has been revoke d, the trial court shall make finding s as to whether Applicant3

has rec eived all the cre dit to which he is entitled on this sentenc e, and as t o wh at t h e maxi mum discharg e date is for this sentenc e. The trial co u rt s h al l al s o make any other finding s of fac t and conclusions of law that it deems rele vant and appropr iate to the dispositi on of Applicant’s claim for habea s corpus re lief. This application will be held in abey ance until the trial court has resolved the fac t issues. The issue s s h al l b e resolved within 30 day s of this order

. A supplemental transcr ipt 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 forwa rded to this Court within 60 day s of the date of this order

. Any extensions of time shall be obtained fr om this C ourt.

Filed: May

18, 2016 Do not publish