Etheredge, Michael Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: March 11, 2020
• Docket: WR-90,981-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-90,981-01 AND WR-90,981-02

EX PARTE MICHAEL WAYNE ETHEREDGE, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. 16-30043-86-F AND 16-30044-86-F IN THE 86TH DISTRICT COURT FROM KAUFMAN COUNTY

Per curiam.

ORDER

Applicant was convicted of aggravated assault of a public servant and sentenced to thirty

years’ imprisonment in the -02 case. He subsequently pleaded guilty in exchange for a concurrent

twenty-year sentence in the -01 case. A condition of his plea agreement in the -01 case was the

waiver of appeal in the -02 case, and Applicant therefore did not appeal either conviction. Applicant

filed these applications for writs of habeas corpus in the county of conviction, and the district clerk

forwarded them to this Court. See TEX . CODE CRIM . PROC. art. 11.07.

Applicant contends that trial counsel was ineffective in the -02 case because counsel failed

to adequately investigate, failed to argue that the physical evidence at the scene did not support the

prosecution’s theory, failed to present evidence that Applicant’s medical condition at the time of the 2

offenses would not have allowed him to brandish firearms in both hands as the complainants

testified, and failed to interview or call available witnesses at trial. In the -01 case, Applicant alleges

that he would not have pleaded guilty to that charge had trial counsel effectively represented him in

the -02 case, but would have insisted on going to trial in that case as well.

Applicant has alleged facts that, if true, might entitle him to relief. Strickland v. Washington,

466 U.S. 668 (1984). 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. Specifically, trial counsel shall state whether she believed

that the physical evidence supported the prosecution’s theory, whether she was aware of Applicant’s

medical condition at the time of the offenses, and if so whether she had access to evidence indicating

that Applicant could not use his right arm at the time of the offenses. Trial counsel shall also state

whether she interviewed the owners of Applicant’s residence and the people occupying the residence

across the street regarding any damage to those residences, and if so, whether she believed that their

testimony would be helpful to the defense. Trial counsel shall state what advice she gave to

Applicant with regard to his options for disposing of the -01 case following his conviction in the -02

case. 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 trial counsel’s

performance was deficient and Applicant was prejudiced. The trial court shall make findings of fact 3

and conclusions of law as to whether Applicant’s plea in the -01 case was knowingly and voluntarily

entered. 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.

Filed: March 11, 2020 Do not publish