Radford, Ex Parte John Banton

IN THE COURT OF CRIMINAL APPEALS OF TEXAS No. AP-74,660 EX PARTE JOHN BANTON RADFORD ON APPLICATION FOR A WRIT OF HABEAS CORPUS FROM TAYLOR COUNTY Per Curiam. 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 The trial court entered findings of fact and conclusions of law, finding that the applicant's parole was revoked because of another drug charge, which was subsequently reversed on appeal.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. We have held, in the probation revocation context, that the use of a conviction, which is on appeal at the time of the revocation, may not be the basis for the revocation. Prince v. State, 503 S.W.2d 777 (Tex. Cr. App. 1974); Barrientez v. State, 500 S.W.2d 474, 476 (Tex. Cr. App. 1973) (non-final conviction could not be the only basis for revocation, but State had relied on other evidence). We see no reason to distinguish a non-final conviction or subsequent reversal of a conviction in the parole context from that in the probation revocation context. Here, the trial court made a finding that the applicant's guilty plea and conviction was conditioned on the appeal. Because the conviction was on appeal at the time of the revocation, and no other evidence was relied on to support the revocation, the revocation was improper. 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: November 10, 2004. Do Not Publish. 1. The petition for discretionary review filed by the State in that appeal (No. 2229-01) has been refused.