             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                           NO. AP-76,756


                    EX PARTE MARCUS ANTOINE HERVEY, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
                 CAUSE NO. 28,153-CR IN THE 13TH DISTRICT COURT
                            FROM NAVARRO COUNTY


       Per curiam.

                                           OPINION

       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 pleaded guilty and was convicted

of aggravated robbery. A jury sentenced him to sixty years’ imprisonment. The Tenth Court of

Appeals upheld his conviction. Hervey v. State, No. 10-02-00148-CR (Tex. App.–Waco, February

11, 2004).

       Applicant contends that his trial counsel rendered ineffective assistance because he failed to

request jury charge instructions on extraneous offense testimony and parole, and telling the jury
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panel that he would not be able to consider probation in an offense such as this one, when he was

requesting the jury to give Applicant community supervision for the offense.

       The trial court has determined that trial counsel was ineffective in that counsel and that such

ineffective representation prejudiced Applicant. We agree. Relief is granted. The sentence in Cause

No. 28,153-CR in the 13th Judicial District Court of Navarro County is set aside, and Applicant is

remanded to the custody of the Sheriff of Navarro County for a new punishment hearing. The trial

court shall issue any necessary bench warrant within 10 days after the mandate of this Court issues.

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

Institutions Division and Pardons and Paroles Division.



Delivered: March 28, 2012
Do Not Publish
