Opinion

Radford, Ex Parte John Banton

Court
Court of Criminal Appeals of Texas
Filed
Feb 9, 2005
Status
Published
Cited by
0 cases

The opinion

IN THE COURT OF CRIMINAL APPEALS

OF TEXAS

AP-74,660

EX PARTE JOHN BANTON RADFORD

ON APPLICATION FOR A WRIT OF HABEAS CORPUS

FROM TAYLOR COUNTY

Per Curiam.

Our opinion of November 10, 2004 is withdrawn, and this opinion is delivered.

This is a subsequent, post-conviction application for a writ of habeas corpus filed

pursuant to Article 11.07 of the Code of Criminal Procedure. In November 1992, the

applicant, John Banton Radford, was convicted of possession of a controlled substance.

Punishment was assessed at twenty years' confinement. The applicant appealed his

conviction and it was affirmed. Radford v. State, No. 11-93-0022-CR (Tex. App. --

Eastland, October 28, 1993, pet. ref'd). The applicant was granted parole in February

1999.

The applicant filed an application for a writ of habeas corpus arguing that his

parole was improperly revoked because the new conviction used by the Board of Pardons

and Paroles to justify the revocation was subsequently reversed. The trial court entered

findings of fact and conclusions of law, finding that the applicant's parole was revoked

because of another drug charge, which was subsequently reversed on appeal. However,

we remanded the matter to the trial court for further factual findings as to whether the

Board of Pardons and Paroles revoked the applicant's parole because he received a new

conviction (subsequently reversed on appeal) and whether the Board relied only on this

new conviction, without considering any evidence, to support the revocation.

On remand, the trial court made supplemental findings of fact and conclusions of

law: (1) the applicant did not testify at the revocation hearing, (2) he did not admit his

guilt in any revocation hearing, (3) the revocation conviction is pending before this court

under a petition for discretionary review filed by the State, (1) (4) the applicant denied

possession of a controlled substance, and (5) any plea in the underlying conviction was

conditioned on the appeal. The record reflects that the Board of Pardons and Paroles

relied solely on the judgment and the indictment of the conviction, which was reversed on

appeal, without hearing any other evidence. No other evidence was introduced and no

other parole violations were alleged to support the revocation. Therefore, because the

conviction used to support the revocation has been reversed, there is now no evidence to

support the revocation.

Relief is granted. The Texas Department of Criminal Justice, Pardons and Paroles

Division, shall reinstate the applicant's parole for the conviction in cause number 2153-D

in the 350th Judicial District Court of Taylor County.

Copies of this opinion shall be sent to the Texas Department of Criminal Justice

(Institutional Division and Paroles Division), and the Board of Pardons and Paroles.

En banc.

Delivered: February 9, 2005.

Do Not Publish.

1. The petition for discretionary review filed by the State in that appeal (No. 2229-01) has

been refused.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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