Lozano, Marco Antonio ( 2022 )

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
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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.
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Filed: November 02, 2022
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