Barnes, Michael Harold ( 2016 )

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS
NO. WR-84,889-01
EX PARTE MICHAEL HAROLD BARNES, Applicant
ON APPLICATION FOR A WRIT OF HABEAS CORPUS
CAUSE NO. D-41,236 IN THE 358TH DISTRICT COURT
FROM ECTOR COUNTY
A LCALA, J., filed a concurring opinion in which J OHNSON, J., joined.
CONCURRING OPINION
I respectfully concur in the Court’s order that remands this pro se habeas application
to the convicting court for further development of the record. I, however, do not join the
Court’s order because it fails to accurately track the statutory language in the Code of
Criminal Procedure, in that it improperly limits an indigent pro se habeas applicant’s
entitlement to the assistance of appointed post-conviction counsel to situations involving a
hearing on remand. As I previously explained in my concurring opinion in Ex parte Pointer,
in order to comply with the statutory requirements in the Code, this Court’s order should
instead more broadly require a habeas court to appoint counsel for an indigent pro se habeas
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applicant whenever the court determines that the interests of justice require it. See Ex parte
Pointer, Nos. WR-84,786-01 & WR-84,786-02, 2016 WL 3193254 (Tex. Crim. App. June
8, 2016) (Alcala, J., concurring) (citing T EX. C ODE C RIM. P ROC. art. 1.051(d)(3) (providing
that an indigent habeas applicant “is entitled to have the trial court appoint an attorney to
represent him in . . . a habeas corpus proceeding if the court concludes that the interests of
justice require representation”)). Because the Court’s order fails to track the statutory
language in the Code of Criminal Procedure by incorrectly suggesting that the habeas court’s
authority to appoint post-conviction counsel is limited to situations involving a hearing on
remand, I cannot join the Court’s order. Aside from my disagreement with the language in
this Court’s order, I otherwise respectfully concur.
Filed: June 29, 2016
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