EX PARTE DONNY JOEL HARVEY (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-09,425-23

EX PARTE DONNY JOEL HARVEY, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 14,130-H IN THE 23RD DISTRICT COURT

FROM BRAZORIA 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 escape and sentenced to four years' imprisonment, consecutive to another sentence.

Applicant contends, inter alia, that he was improperly denied the assistance of counsel in a 2006 conditional release revocation hearing. He also contends that he was prevented by his parole officer and the hearing officer from contacting and presenting witnesses and obtaining and presenting documentary evidence in defense and mitigation.

This cause was previously remanded to the trial court, which entered findings that no cumulation order was entered in this cause, such that this sentence expired more than twenty years ago. However, a review of our records in Applicant's application number WR-09,425-19 discloses that a valid cumulation order was entered in the sentence for this cause, which at the time was a separate document from the judgment which is included in the current habeas record. Therefore, this cause must be remanded again. The trial court shall obtain from the Office of the General Counsel, Texas Department of Criminal Justice, copies of the notice of conditional release revocation, the revocation hearing report, and any other documentation of the revocation proceedings that would be helpful to resolving Applicant's contentions.

The trial court shall make findings of fact as to whether Applicant was properly denied the assistance of counsel and whether Applicant was prevented from presenting witnesses and documentary evidence in defense and mitigation which might have persuaded or precluded the Board of Pardons and Paroles from revoking his parole. The trial court shall also make any other findings of fact and conclusions of law that it deems relevant and appropriate to the disposition of Applicant's claims for habeas corpus relief.

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 transcript containing copies of the documents relevant to the decision to revoke Applicant's conditional release and all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's findings of fact and conclusions of law, 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: November 19, 2008

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