McDade, Troy Wayne

• Court: Court of Criminal Appeals of Texas
• Decided: July 3, 2019
• Docket: WR-90,008-01
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-90,008-01

EX PARTE TROY WAYNE MCDADE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1328311-A IN THE 208TH DISTRICT COURT FROM HARRIS 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 murder and

sentenced to sixteen years’ imprisonment. The First Court of Appeals affirmed his conviction.

McDade v. State, No. 01-13-00478-CR (Tex. App.—Houston [1st] July 31, 2014).

Applicant raises ten grounds in his initial and supplemental habeas applications. On July 11,

2017, an order designating issues was signed by the trial court. Applicant contends, among other

things, that his trial counsel rendered ineffective assistance by telling him that he would be able to

have the charges dismissed on a self-defense theory, by failing to file a motion to suppress his 2

statement to police, by failing to ask for a directed verdict when the State failed to prove intent to

commit murder, by failing to argue sudden passion, by failing to argue to suppress the shotgun, and

by failing to request a lesser included offense instruction for felony deadly conduct.

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 trial counsel to respond to Applicant’s claim of ineffective assistance of 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 Applicant at the hearing. TEX . CODE CRIM . PROC. art. 26.04.

The trial court shall make findings of fact and conclusions of law as to whether the

performance of Applicant’s trial counsel was deficient and, if so, whether counsel’s deficient

performance prejudiced Applicant. 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 claim for

habeas corpus relief.

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 must 3

be requested by the trial court and shall be obtained from this Court.

Filed: July 3, 2019 Do not publish