In Re: Benjamin Wayne McCoin--Appeal from of County

In The

Court of Appeals

Sixth Appellate District of Texas at Texarkana

______________________________

No. 06-04-00032-CV

______________________________

IN RE:

BENJAMIN WAYNE MCCOIN

Original Mandamus Proceeding

Before Morriss, C.J., Ross and Carter, JJ.

Memorandum Opinion by Chief Justice Morriss

MEMORANDUM OPINION

In 2000, a jury convicted Benjamin Wayne McCoin for trying to kill his ex-wife and her husband by blowing them up with dynamite. McCoin v. State, 56 S.W.3d 609 (Tex. App. Texarkana 2001, no pet.). McCoin was sentenced to ninety-nine years' imprisonment, and this Court affirmed the conviction on direct appeal. Id. McCoin now asks us to order the Honorable John Miller, trial judge of the 102nd Judicial District Court, to conduct an evidentiary hearing on McCoin's tenth // post-conviction application for writ of habeas corpus. See Tex. Code Crim. Proc. Ann. art. 11.07 (Vernon Supp. 2004). We deny McCoin's request.

Mandamus is an extreme remedy. We may issue a writ of mandamus only when the record establishes (1) a clear abuse of discretion or the violation of a duty imposed by law, and (2) the absence of a clear and adequate remedy at law. Cantu v. Longoria, 878 S.W.2d 131, 132 (Tex. 1994); Walker v. Packer, 827 S.W.2d 833, 839 40 (Tex. 1992). Article 11.07 of the Texas Code of Criminal Procedure governs the procedure whereby a felon who was convicted of a noncapital crime may file an application for writ of habeas corpus. Tex. Code Crim. Proc. Ann. art. 11.07. A trial court must conduct a hearing on an application for writ of habeas corpus only "[i]f the convicting court decides there are controverted, previously unresolved facts which are material to the legality of the applicant's confinement . . . ." Tex. Code Crim. Proc. Ann. art. 11.07(3)(d).

We asked the district clerk to file with this Court a record consisting of McCoin's application for writ of habeas corpus, the State's response (if any), and the trial court's order(s) pertaining to McCoin's application. See Tex. R. App. P. 34.5(c). That record was filed March 19, 2004, yet it also included an order from the Texas Court of Criminal Appeals regarding McCoin's application for writ of habeas corpus. The order from the Texas Court of Criminal Appeals stated, in pertinent part:

In his present application, [McCoin] contends, inter alia, that he is not receiving credit on his sentence for all of the time that he spent in federal custody pursuant to a state detainer.

The trial court has not entered findings of fact or conclusions of law. Applicant has alleged facts which, if true, might entitle him to relief. Therefore, it is this Court's opinion that additional facts need to be developed and that since this Court cannot hear evidence, the trial court is the appropriate forum. The trial court may resolve those issues as set out in Article 11.07, 3 (d), V.A.C.C.P., in that it may order an affidavit from [the] Sheriff's Office officials, or it may order depositions, interrogatories, or a hearing. In the appropriate case, the trial court may rely on its personal recollection.

If the trial court elects to hold a hearing, that court should first decide whether [McCoin] is indigent. If the trial court finds that [McCoin] is indigent, and the Applicant desires to be represented by counsel, the trial court will then, pursuant to the provisions of Article 26.04, V.A.C.C.P., appoint an attorney to represent him at the hearing.

Ex parte McCoin, No. 19,388-10, slip op. at 1 2 (Tex. Crim. App. Jan. 21, 2004) (not designated for publication). The Texas Court of Criminal Appeals did not direct the trial court to conduct a hearing on the other issues raised in McCoin's application. //

The order from the Texas Court of Criminal Appeals permits the trial court to receive affidavits or evidence in lieu of a formal hearing. On February 2, 2004, the trial court entered an order partially granting the relief requested by McCoin's application for writ of habeas corpus by giving him credit for the time he spent in 1992 in federal custody while the State of Texas had a detainer against him.

The order from the Texas Court of Criminal Appeals left to the trial court's discretion the decision of whether to conduct a full evidentiary hearing. Based on the record before us, we cannot say McCoin has demonstrated the trial court either abused that discretion or committed a violation of a statutory duty. Accordingly, McCoin is not entitled to relief in his petition for writ of mandamus.

We deny McCoin's petition for writ of mandamus.

Josh R. Morriss, III

Chief Justice

Date Submitted: March 29, 2004

Date Decided: March 30, 2004