Barker, Morgan Daniel

• Court: Court of Criminal Appeals of Texas
• Decided: February 12, 2020
• Docket: WR-90,795-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,795-01

EX PARTE MORGAN DANIEL BARKER, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 2017F00123-A IN THE 5TH DISTRICT COURT FROM CASS COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to aggravated assault with a deadly weapon and was sentenced to

fifteen years’ imprisonment. The Sixth Court of Appeals affirmed his conviction. Barker v. State,

No. 06-18-00203-CR (Tex. App. — Texarkana May 7, 2019). 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 that his plea was involuntary because trial counsel advised Applicant to

plead guilty, but failed to properly advise Applicant of the level of the charge against him and the

potential punishment range. Applicant also alleges the State withheld material information from the

defense, specifically a Child Protective Services Report. Applicant has alleged facts that, if true, 2

might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Patterson, 993

S.W.2d 114, 115 (Tex. Crim. App. 1999); Brady v. Maryland, 373 U.S. 83 (1963); 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

claim. 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 him 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 and whether Applicant would have insisted on a trial but for counsel’s

alleged deficient performance. The trial court shall also make findings of fact and conclusions of

law as to whether the Child Protective Services Report exists, whether the State withheld the Child

Protective Services Report, whether the report was material, and whether this information was made

available to the defense prior to Applicant’s guilty plea. 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.

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 3

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: February 12, 2020 Do not publish