EX PARTE JON ALLEN ASHCRAFT (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-24,803-05

EX PARTE JON ALLEN ASHCRAFT, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 91-CR-1521-E IN THE 357TH DISTRICT COURT

FROM CAMERON 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 burglary of a habitation and sentenced to seventy-five years' imprisonment. This sentence was ordered to run consecutively to Applicant's seventy-five year sentence in Cameron County cause number 91-CR-1371-E.

Applicant contends that he had been serving these sentences concurrently, but after his return from parole, the Texas Department of Criminal Justice (TDCJ) improperly calculated his sentences consecutively. These sentences should have been running consecutively from the time of the judgment in this case. It appears that TDCJ was improperly running them concurrently, and as a result, Applicant was erroneously released to parole on this sentence when he was not eligible for parole. When he returned to TDCJ custody, his sentences were recalculated to run consecutively, which is what should have been done originally.

At the time he was voted to parole in cause number 91-CR-1371-E, he should have begun serving the sentence in this case and his sentences at that point would have begun to run concurrently. Ex parte Kuester, 21 S.W.3d 264 (Tex. Crim. App. 2000). In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1997), the trial court is the appropriate forum for findings of fact.

The trial court shall order the Texas Department of Criminal Justice's Office of the General Counsel to file an affidavit listing Applicant's sentence begin date and the dates of issuance of any parole-revocation warrants leading to the revocation of such parole or mandatory supervision. The affidavit shall state whether Applicant's sentence in cause number 91-CR-1371-E has ceased to operate and if so, on what date that occurred. The affidavit shall state what sentence Applicant is currently serving, his parole eligibility date on each sentence, and his maximum discharge date on each sentence. The affidavit should state whether Applicant is serving a sentence for, or has previously been convicted of, an offense which was listed in Tex. Gov't Code § 508.149(a) at the time of Applicant's revocation. The affidavit should also address how much time was remaining on this sentence on the date that Applicant was released on parole, and how much time Applicant spent on release before the issuance of the parole-revocation warrant. The affidavit should state whether or not Applicant is receiving credit for any of the time spent on parole, and if not, the reasons for that denial. Finally, the affidavit should indicate whether or not Applicant has submitted his claim to the time credit resolution system of TDCJ, and if so, the date when the claim was submitted.

The trial court may also order depositions, interrogatories or a hearing. If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wishes to be represented by counsel, the trial court shall appoint an attorney to represent Applicant at the hearing. Tex. C ode Crim. Proc. art. 26.04.

The trial court shall make findings of fact first as to whether Applicant has properly exhausted his administrative remedies as required by Tex. Gov't Code § 501.0081(b)-(c). The trial court shall then make findings as to whether Applicant is eligible to earn street time credit, and if so, whether he is entitled to credit for his time spent on release. The trial court shall also make findings as to whether Applicant is receiving the proper amount of time credit. 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 claim 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 supplemental transcript containing all affidavits and interrogatories or the transcription of the court reporter's notes from any hearing or deposition, along with the trial court's supplemental 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: May 25, 2011

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