IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-82,790-01
EX PARTE MARCEL DAVIS, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. W09-57260-R(A) IN THE 265TH DISTRICT COURT
FROM DALLAS COUNTY
Per curiam.
ORDER
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 a writ of habeas corpus. Ex parte
Young, 418 S.W.2d 824, 826 (Tex. Crim. App. 1967). Applicant was convicted of injury to a child
and sentenced to fifty years’ imprisonment. The Fifth Court of Appeals affirmed his conviction.
Davis v. State, No. 05-11-00585-CR (Tex. App.—Dallas Apr. 5, 2012) (not designated for
publication).
Applicant contends, among other things, that counsel failed to explain the culpable mental
states in § 22.04 of the Penal Code, the injury to a child statute. He also contends that at punishment
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counsel elicited testimony that he sold pills and marihuana. Counsel responded in a sworn affidavit,
and the trial court made findings of fact and conclusions of law and recommended that we deny
relief. We believe that the record is not adequate to resolve these claims.
Applicant has alleged facts that, if true, 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). 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
shall order a second response from counsel. 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.
After reviewing counsel’s second response, the trial court shall make further findings of fact
as to whether counsel explained the culpable mental states in § 22.04. The trial court shall also
determine whether counsel requested notice under Article 37.07, § 3(g) of the Code of Criminal
Procedure, the State provided timely notice that it intended to introduce evidence that Applicant sold
pills and marihuana, and this evidence would have been offered and admissible had it not been
elicited by counsel. The trial court shall then make further conclusions of law as to whether
counsel’s conduct was deficient and Applicant was prejudiced. The trial court shall also order the
District Clerk to forward a copy of the State’s Article 37.07 notice, if it exists. 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 claims for habeas corpus relief.
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This application 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. 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 forwarded to this Court within 120 days of the date of this order. Any extensions of time shall
be obtained from this Court.
Filed: March 18, 2015
Do not publish