Opinion
NO. WR-91,845-01
11-04-2020
EX PARTE ANTHONY MARCUS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. W16-30422-M(A) IN THE 194TH DISTRICT COURT FROM DALLAS COUNTY
Per curiam. ORDER
Applicant pleaded guilty to murder and went to a jury for punishment. He was sentenced to seventy years' imprisonment. The Fifth Court of Appeals affirmed his conviction but modified the judgment. Marcus v. State, No. 05-17-00655-CR (Tex. App. — Dallas Oct. 12, 2018) (not designated for publication). Applicant filed this application for a writ of habeas corpus in the county of conviction, and the district clerk forwarded it to this Court. See TEX. CODE CRIM. PROC. art. 11.07.
Applicant contends, among other things, that his plea was involuntary and that his trial counsel was ineffective. Applicant alleges that his plea was involuntary because trial counsel erroneously advised him that he would be eligible for community supervision if he entered an open plea to the jury. He also alleges that trial counsel obtained a jury instruction on sudden passion but failed to argue for such a finding, and that trial counsel failed to preserve error by objecting to improper statements made by the prosecutor during closing arguments.
This Court has reviewed Applicant's other claims and finds them to be without merit. --------
Applicant has alleged facts that, if true, might entitle him to relief. Hill v. Lockhart, 474 U.S. 52 (1985); Ex parte Argent, 393 S.W.3d 781 (Tex. Crim. App. 2013). Accordingly, the record should be developed. The trial court is the appropriate forum for findings of fact. TEX. CODE CRIM. PROC. art. 11.07, § 3(d). The trial court shall order trial counsel to respond to Applicant's claims. In developing the record, the trial court may use any means set out in Article 11.07, § 3(d). If the trial court elects to hold a hearing, it shall determine whether Applicant is indigent. If Applicant is indigent and wants to be represented by counsel, the trial court shall appoint counsel to represent her at the hearing. See TEX. CODE CRIM. PROC. art. 26.04. If counsel is appointed or retained, the trial court shall immediately notify this Court of counsel's name.
The trial court shall make findings of fact and conclusions of law as to whether trial counsel's performance was deficient, whether Applicant would not have pleaded guilty but for counsel's advice regarding his eligibility for community supervision, and whether the results of the proceeding would otherwise have been different but for counsel's alleged deficient performance. The trial court may make any other findings and conclusions that it deems appropriate in response to Applicant's claims.
The trial court shall make findings of fact and conclusions of law within ninety days from the date of this order. The district clerk shall then immediately forward to this Court the trial court's findings and conclusions and the record developed on remand, including, among other things, affidavits, motions, objections, proposed findings and conclusions, orders, and transcripts from hearings and depositions. See TEX. R. APP. P. 73.4(b)(4). Any extensions of time must be requested by the trial court and obtained from this Court. Filed: November 4, 2020
Do not publish