EX PARTE MARCUS DEWAYNE SHINE, Applicant (Other)

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NOS. WR-76,473-01 & -02
EX PARTE MARCUS DEWAYNE SHINE, Applicant

ON APPLICATIONS FOR A WRIT OF HABEAS CORPUS
CAUSE NOS. 8442 & 8453 IN THE 8TH DISTRICT COURT
FROM FRANKLIN 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 these applications for a writ of habeas corpus. Ex parte Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of possession of a controlled substance and delivery of a controlled substance and sentenced to ten years' imprisonment on each count. He did not appeal his convictions.

Applicant contends, among other things, that trial counsel rendered ineffective assistance because he relied on the State's file and failed to conduct an independent investigation. On October 5, 2011, we remanded these applications and directed the trial court to order trial counsel to respond to Applicant's claim. We also directed the trial court to make findings of fact and conclusions of law as to whether: (1) the playground alleged in the indictments was open to the public and met the definition of "playground" in § 481.134(a)(3) of the Health and Safety Code; (2) trial counsel's performance was deficient; and (3) Applicant was prejudiced.

On remand, trial counsel filed a sworn affidavit, which the trial court found credible, and the trial court adopted as findings of fact the history of the cases as set forth in the State's response. No response from the State was forwarded with the original or supplemental record, however, and the trial court did not determine whether the playground alleged in the indictments was open to the public and met the definition of "playground" in § 481.134(a)(3). Accordingly, we believe that the record is not sufficient to resolve Applicant's claim.

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 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 him at the hearing. Tex. Code Crim. Proc. art. 26.04.

The trial court shall make further findings of fact and conclusions of law as to what evidence, if any, shows that the playground alleged in the indictments was open to the public and is a "playground" as defined by § 481.134(a)(3) of the Health and Safety Code. The trial court shall then make findings and conclusions as to whether trial counsel's performance was deficient and, if so, whether Applicant was prejudiced. Finally, the trial court shall make a finding as to whether Applicant received any benefit in exchange for pleading guilty and agreeing to be sentenced to ten years' imprisonment, the maximum sentence in these causes. The trial court shall also make any other findings and conclusions that it deems relevant and appropriate to the disposition of Applicant's claim for habeas corpus relief.

These applications 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. A copy of the State's response, if it exists, shall also be forwarded with the supplemental record. Any extensions of time shall be obtained from this Court.

 

Filed: January 11, 2012

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