EX PARTE NAKITA WICKWARE (other)

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IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

NO. WR-76,157-01

EX PARTE NAKITA WICKWARE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

CAUSE NO. 114-80784-99 IN THE 114TH JUDICIAL DISTRICT COURT

FROM SMITH 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 entered an open plea of guilty to of burglary of a habitation and was sentenced to twenty years' imprisonment.

Applicant contends that he was denied due process when the Texas Board of Pardons and Paroles imposed sex offender conditions for Applicant's parole release although he has not been convicted of a sex offense. 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. 1997), 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 Applicant at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall obtain an affidavit from TDCJ, giving a history of Applicant's parole release and revocation. The trial court shall supplement the record with copies of all documents pertaining to Applicant's parole review, release, and revocation. The trial court shall then make findings as to whether Applicant had been previously convicted of a sex offense at the time of his parole review. The trial court shall make findings of fact as to whether Applicant was released to parole, and if so, whether sex offender conditions were imposed as conditions of Applicant's parole. The trial court shall make findings as to whether Applicant's parole was revoked, and if so, what violations of the conditions of his parole were alleged and proved. The trial court shall make findings as to whether the notice and opportunity to be heard afforded to Applicant before the imposition of sex offender conditions were adequate under Ex parte Evans, 338 S.W.3d 545 (Tex. Crim. App. 2011). 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: August 24, 2011

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