




 





IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-55,481-02


EX PARTE JAMES EARL BELCHER, SR., Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
TRIAL COURT CAUSE NO. B-17,038-B 
IN THE 161ST  JUDICIAL DISTRICT COURT
FROM ECTOR COUNTY


 Per curiam.

 O R D E R


	This is an application for a writ of habeas corpus which was transmitted to this Court 
pursuant to the provisions of Tex. Code Crim. Proc. art. 11.07.  Applicant was convicted
of the offense of aggravated sexual assault, and punishment was assessed at confinement for
forty years.  No direct appeal was taken.  
	Applicant contends that he was denied due process of law during his parole revocation
proceedings.  Specifically, he states he was denied his right to counsel that attached due to
a speech impediment and other mental and physical disabilities that rendered him unable to
communicate effectively.  Additionally, he claims he was denied due process because he is
actually innocent of the new charges which were used to revoke his parole, and the evidence
adduced at his revocation hearing conclusively shows he was in the custody of his half-way
house when the alleged offense upon which his revocation was based occurred.
	This Court remanded the cause to the trial court for findings of facts and conclusions
of law concerning the above issues.  Thereafter, the trial court issued findings of facts and
conclusions of law, but those findings and conclusions do not fully address the issues upon
which this case was remanded.  Additionally, the trial court concluded this case was a
subsequent application, however, Applicant has never challenged the merits of his
conviction.  
	We believe that Applicant has alleged facts that, if true, might entitle him to relief. 
Therefore, it is this Court's opinion that additional facts still need to be developed.  Because
this Court cannot hear evidence, the trial court is the appropriate forum.  The trial court shall
resolve those issues as set out in Tex. Code Crim. Proc. art. 11.07, § 3 (d), in that it shall
order affidavits, depositions, or interrogatories, or it may order a hearing.  
	If the trial court elects to hold a hearing, the court shall first decide whether Applicant
is indigent.  If the trial court finds that Applicant is indigent and Applicant desires to be
represented by counsel, the trial court will then, pursuant to the provisions of Tex. Code
Crim. Proc. art. 26.04, appoint an attorney to represent him at the hearing.  
	Following receipt of additional information, the trial court shall make findings of facts
as to whether, at the time of the revocation hearing, Applicant had a speech impediment, or
mental or physical defect, such that his ability to effectively communicate was compromised
such that counsel should have been appointed to represent him in his revocation proceedings. 
The court shall order an affidavit from Applicant's supervising parole officer and the parole
revocation hearing officer to effectuate this purpose.
	The court shall also determine whether Applicant's claim of actual innocence of the
sexual assault charges used to revoke his parole has merit.  Specifically, the trial court shall
make findings of facts concerning whether or not Applicant was at his assigned half-way
house at the time he was alleged to have committed a sexual assault.  To aid in making this
determination, the court shall obtain affidavits from the parole division, the supervisor in
charge of the half-way house, and Applicant's former supervisor at Denny's restaurant.  The
trial court may also order a hearing.
	The trial court shall also make any further findings of fact and conclusions of law it
deems relevant and appropriate to the disposition of the application for writ of habeas corpus.
	Because this Court does not hear evidence, Ex Parte Rodriquez, 334 S.W.2d 294 (Tex.
Crim. App. 1960), this application for a post-conviction writ of habeas corpus will be held
in abeyance pending the trial court's compliance with this order.  Resolution of the issues
shall be accomplished by the trial court within 90 days of the date of this order. (1)  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. (2)
 IT IS SO ORDERED THIS THE 21 DAY OF June, 2006.


DO NOT PUBLISH  

1.   In the event any continuances are granted, copies of the order granting the continuance
shall be provided to this Court.
2.   Any extensions of this time period shall be obtained from this Court.
