Fuller, Mark Eugene ( 2022 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NOS. WR-93,387-01 & WR-93,387-02
EX PARTE MARK EUGENE FULLER, Applicant
ON APPLICATIONS FOR WRITS OF HABEAS CORPUS
CAUSE NOS. 10663-A & 10665-A
ST
IN THE 31 DISTRICT COURT FROM GRAY COUNTY
Per curiam.
ORDER
Applicant was convicted of aggravated sexual assault of a child, sentenced to sixty years’
imprisonment, and indecency with a child, sentenced to twenty years’ imprisonment. He 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 alleges that counsel was ineffective during the revocation hearing for, among other
things, not allowing him to testify and failing to protect a five year plea bargain agreement which
was reached between the parties. Applicant also contends that he was denied his right to an appeal
because counsel failed to timely file a notice of appeal. Applicant has alleged facts that, if true,
might entitle him to relief. Strickland v. Washington, 466 U.S. 668 (1984); Ex parte Axel, 757
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S.W.2d 369 (Tex. Crim. App. 1988); Jones v. State, 98 S.W.3d 700 (Tex. Crim. App. 2003).
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 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 regarding whether counsel prevented Applicant
from testifying in his own defense and whether a five year plea offer was made and accepted, and
if so, how that deal did not move forward. The trial court shall also make findings of fact and
conclusions of law as to whether Applicant was denied his right to an appeal because trial counsel
failed to timely file a notice of appeal. 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.
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Filed: January 12, 2022
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