Hervey, Ex Parte Marcus Antoine

• Court: Court of Criminal Appeals of Texas
• Decided: March 28, 2012
• Docket: AP-76,756
• Status: Published

Opinion

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 13^TH DISTRICT COURT

FROM NAVARRO COUNTY

Per curiam.

O P I N I O N

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 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 13^th 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Do Not Publish