









IN THE COURT OF CRIMINAL APPEALS

OF TEXAS





NO. WR-71,732-03


EX PARTE MARCUS ANTOINE HERVEY, Applicant





ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. 00-00-28153-CR IN THE 13TH DISTRICT COURT

FROM NAVARRO COUNTY



 Per curiam.
 
O R D E R


	Pursuant to the provisions of Article 11.07 of the Texas Code of Criminal Procedure, the
clerk of the trial court transmitted to this Court this application for writ of habeas corpus.  Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967).  Applicant filed two previous writ applications
regarding this conviction, but both were dismissed as non-compliant, therefore this application is not
subsequent.  Tex. Code Crim. Proc. art. 11.07, § 4.  Applicant was convicted of aggravated robbery
and sentenced to sixty years' imprisonment.  The Tenth Court of Appeals affirmed his conviction.
Hervey v. State, No. 10-02-148-CR (Tex. App.-Waco, February 11, 2004). 
	Applicant contends, inter alia, that his trial counsel rendered ineffective assistance by
repeatedly telling the jury panel that he might not be able to consider probation for this offense and
by failing to request jury instructions on parole law and the burden of proof for extraneous offense
evidence.  
	Applicant has alleged facts that, if true, might entitle him to relief.  Strickland v. Washington,
466 U.S. 668 (1984); Ex parte Lemke, 13 S.W.3d 791,795-96 (Tex. Crim. App. 2000).  In these
circumstances, additional facts are needed.  As we held in Ex parte Rodriguez, 334 S.W.2d 294, 294
(Tex. Crim. App. 1960), the trial court is the appropriate forum for findings of fact.  The trial court
shall obtain a response from Applicant's trial counsel regarding Applicant's claim of ineffective
assistance of counsel.  The trial court may use any means set out in Tex. Code Crim. Proc. art.
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 wishes to be represented by counsel, the trial court shall appoint an
attorney to represent Applicant at the hearing.  Tex. Code Crim. Proc. art. 26.04. 
	The trial court shall make findings of fact as to whether the performance of Applicant's trial
attorney was deficient and, if so, whether counsel's deficient performance prejudiced Applicant.  The
trial court shall also make any other findings of fact and conclusions of law that it deems relevant
and appropriate to the disposition of Applicant's claim for habeas corpus relief.
	This application will be held in abeyance until the trial court has resolved the fact issues.  The
issues shall be resolved within 90 days of this order.  If any continuances are granted, a copy of the
order granting the continuance shall be sent to this Court. 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.  Any extensions of time shall be
obtained from this Court. 



Filed: September 14, 2011
Do not publish
