EX PARTE CLIFFORD WARD FUTCH (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-75,967-01

EX PARTE CLIFFORD WARD FUTCH, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 17666 IN THE 2ND DISTRICT COURT

FROM CHEROKEE 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 a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of bail jumping and failure to appear and sentenced to twenty-five years' imprisonment. He did not appeal his conviction.

Applicant contends in his second ground that the plea agreement was breached because he pleaded guilty in exchange for 750 days of pre-sentence credit and is receiving only 587 days of pre-sentence credit. Applicant has alleged facts that, if true, might entitle him to relief. In these circumstances, additional facts are needed. As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294 (Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact. The trial court may use any means set out in Tex. Code Crim. Proc. art. 11.07, § 3(d). In the appropriate case, the trial court may rely on its personal recollection. Id.

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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make findings of fact as to whether Applicant pleaded guilty in exchange for 750 days of pre-sentence credit and, if so, whether this plea agreement was breached because the Texas Department of Criminal Justice is crediting Applicant with only 587 days. 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: June 22, 2011

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