## 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-47,593-03

EX P ARTE RANDAL F RANK LIN CARAWAY , Appli cant

ON AP P LICATION FOR A WRIT OF HABEAS CORP US CAUSE NO. 19072C IN THE 91S T DIST RICT COURT

F ROM EASTLAND COUNTY

Per curiam . O R D E R Applicant was convicted o f m u rder and sentenc ed to ninety -nine y ear s’ imprisonment. During the punishment phase, the parties stipulated that Applicant had acte d under the influence of sudden passion arising from adequa te cause , resulting in a

reduc tion of the deg ree of offe nse from first deg ree to second deg ree murder. Be cause Applicant’s punishm ent was enhanc ed usi ng prior convictions, the ninety -nine y ear sentenc e assessed by the jury was within the applicable punishment
rang e for the offe nse. The Eleventh Court of Appea ls a ffirme d Applicant’s conviction. Caraway

v. State , No. 11-96-00189- CR (Tex. App. — Eastland De ce m b er 17, 1998) (not desig nated for publication). Applicant has previously ch al l en ged this conviction two times by way of habea s corpus, and this Court has denied relief and dismiss ed some of Applicant’s previous claims as barr edby

Texas Code of Criminal Procedure article 11.07 §4. Applicant filed this application for a writ of habea s corpus in the county of conviction, and the district cler

k forwa rded it to this Court. See T E X
. C O D E C R I M
. P R O C
. art. 11.07. Ap p l i cant contends that he rec eived ineffe ctive assistance of trial counsel and enter ed an involunt ar y “p l ea” reg arding the s udden passion issue. Those claims are barr ed by Article 11.07 §4. Howeve r, Appl i ca n t als o alleg es that he is being denied due proce ss by the retroa ctive application of Texas Gover nment Code § 508.149(a) to deny him elig ibilit y for rele ase to mandatory supervision. Applicant alleg es that he only beca me awa re of this issue rec ently when he submitt ed claims to the time cre dit resolution sy stem of the Texas Depa rtment of Criminal J ustice and rec eived
response s from that office indicating that this conviction makes him ineligible for mandatory supervision pursuant to Section 508.149(a ). On the date of this offe nse, in 1994, Section 508.149 of the Texas Gover nment Code did not exis t. Rather, elig ibilit y for mandatory supervision and parole wer e g overne d by Articles 42.12 and 42.18 of the Texas Code of Criminal Procedur e. Although the version of Article 42.12 in eff ect on the date of the offe nse listed murder as an offe nse requiring the inmate to serve half the sentenc e in flat time or thirty y ear s befor e becoming elig ible for parole , second deg ree murder was not an offe nse listed in Article 42.18 as be ing ine ligible f or manda tory

supervision in 1994. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. 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 co urt shall order the Texas Depa rtment of Criminal J ustice’s Offic e of the Gene ral Counsel to obtain a response from a person with knowledg e of rele vant fac ts. I n developing the record, the trial court may use any means set out in Article 11.07, § 3(d). I f t he trial court elec ts to hold a hear ing, it shall deter mine whether Applicant is indige nt. I f Applicant isindige nt and wants to 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 reta ined, the trial court shall immediately

notify this Court of counsel’s name

. The response shall state whether Applicant is considere d elig ible for mandatory supervision, and if not, why not. I f Applicant is curr ently considere d to be ineligible for mandatory supervision, the response shall state whether he has alway s been so classified, or whether he has only rec ently been c onsidered ine ligible f or manda tory

supervision. The trial court shall make findings of fac t and conclusions of l aw as t o whether Applicant

was classified as ineligible for mandatory superv i s i o n at the time he filed his previous habea s applications, and as to w h e th e r Applicant could have raised this claim in those previous applications. The trial court shall then deter mine whether Applicant is curr entl y co n s i d er ed to be elig ible for mandatory supervision, and i f n o t , wh y not. The trial court may make any other finding s and conclusions that it deems appr opriate in re sponse to Applicant’s c laims. The trial court shall make findings of fac t an d conclusions of law withi n 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: Mar ch 17, 2021 Do not publish