Lozano, Marco Antonio

• Court: Court of Criminal Appeals of Texas
• Decided: November 2, 2022
• Docket: WR-93,970-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-93,970-01

EX PARTE MARCO ANTONIO LOZANO, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. DC78-CR2019-0167*1 IN THE 78TH DISTRICT COURT FROM WICHITA COUNTY

Per curiam.

ORDER

Applicant pleaded guilty to possession of a controlled substance and was placed on deferred

adjudication probation. Following the State’s motion to proceed with adjudication of guilt, alleging

that Applicant had violated his probation conditions. The trial court found a number of those

allegations true, adjudicated Applicant guilty, and sentenced Applicant to eighteen months’

imprisonment in state jail. Applicant did not appeal his conviction. 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, among other things, that adjudication counsel was ineffective for failing

to request a competency evaluation, present mitigating evidence at sentencing, and file a notice of 2

appeal. Applicant also alleges that he is incompetent and was incompetent when he pleaded guilty

and when his guilt was adjudicated. Applicant has alleged facts that, if true, might entitle him to

relief. 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 both plea

counsel and adjudication counsel to respond to Applicant’s claims. 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 adjudication

counsel’s performance was deficient and Applicant was prejudiced. The trial court shall also make

specific findings as to whether Applicant was incompetent when he pleaded guilty and when his guilt

was adjudicated. The trial court may make any other findings and conclusions that it deems

appropriate in response to Applicant’s claims.

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

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. 3

Filed: November 02, 2022 Do not publish