Wade, Alex Melvin

Opinion

Dr. Alex.Melvin Wade, Jr.p Paralegal Specialist Mark W. Stiles

3060 FM 3514 Beaumont, Texas 77705-7638 ~ RECEVED|N 11/19/15 COURT OF CR|M!NAL APPEALS The Honorable Justices of . NQ\' 30 2015

7Texas Court of Criminal.Appeals

c/o Abel Acosta, Clerk

P.O. Box 12308 ' . Ab@p g B,k Capitol Station ACO§U’CRS Austin, Texas 78711- 2308

Ref.: Gause Number, WR=65,555-20;1n Re Alex Melvin Wade, Jr. , 1n the 185th Judicial D1str1ct Court, Harris County, Texas Cause Number: 1222385-D APPLICANT ALEX MEEVIN WADE, JR."S STRENUGUSLY OBJECT AND RESPOND 10 STATE' S @RIGINAL ANSWER FILII 11/05/15, IN THE 185th JUDICIAL DISTRICT COURT, HARRIS COUNTY, TEXAS ,

1b the Honorable_Justice of said Gourt:

Enclosed herewith please find copy of the above entitled pleading, the original filed in the 185th Judicial Bistrict Court Harris Gounty, Texas and the same deposited in the "Prison Mailbox," at Mark W. Stiles, 3060 FM 3514, Beaumont, Texas 77705- 7638 on November 17th, 2015, mailed to the Office ofd¥zh §Honorable Chris Daniel, Clerk Harris County, Texas 77002.}§rd1cant forwarded a copy

to the Office of Devon Anderson, District Attorney, c/o Farnaz Faiaz, Assistant District Attorney, 1201 Franklin, 6th Fl., Houston, Texas 777©@2. `

,On November 13th, 2015, this Applicant received a copy (two) of the State's Original Answer filed on November 5th, 2015, one from the Office of Ghris Daniel, ~:Clerk, Harris County, Texas and the other from the foice of Devon Anderson, Harris Gounty, Texas District Attorney, signed Farnaz Faiaz, Assistant District Attorney, where the :States Q©riginal Answer depict to cause the habeas corpus record circumvented. making it appear this Applicant filed two pleadings, one, original writ application and: two, an amended writ application. When it knew, as that Office filed on March ]1th,2015,v1a., of Andrew Smith Assistant District Attorney, States sMotion Requesting Designation of lssue and State s Proposed Order Designating lssue. (Attached to the pleading attached hereto named in the above entitled captioned cause. )

On November 19th, 2015, Applicant with the assistance of a member of his famib/ \ _ went online to the 0ff1ce of Chris laniel s website searching cause number ' ' 1222385-D, where it was discovered the Applicant filing appear to be labeled EXhibits and upon opening 05 the folders, the record appear to be incomplete. Nevertheless, this Court s ®rder of November 4th, 2015 make it clear the

habeas corpus record can satisfy what this deems relevant issue regarding

issuance of a mandamus. The record incomplete will cause this Applicant be denied."due process of law,_' if this Court is not accorded a complete habeas

corpus to make the determination as to whther the 180 days has elasped and

whether applicant has filed a writ of habeas corpus.

\ ,

.T%xas@€ourt of Criminal Appeals

lb the Honorable Justice of Said Court c/o Abel Acosta, Clerk

page two (2)»

November 19th, 2015

Since, it appear fromcthe`Statefs.Original»Answer dated 11/05/15 and the Statefs Motion Requesting Designation of lssue filed 03/11/16 some.18 months ago._Ihe State is again attempting the cause the record be manipulated making it appear. Applicant has not filed any other pleadings other than the pleadings listed in its Statefs Original Answer,.©riginal Application for writ of habeas corpus and an amended writ of habeas corpus; when in;fact;Applicant has filed with the Office of €hris Q§niel, Clerk of Harris €ounty,.Texas with just exhibits along over 150 pages.°~??§'(Applicant filed an amended writ application on November 17th, 2015,.in cause number' WR-65,555-23, a copy of the partial clerk{s record, where Applicant filed in.the above.entitled cause in the foice of Chris Daniel, Clerk.of Harris County, Texas a-copy,of the same, with other portions of the Clerk's Recorleol. 1,of.2 & 2 of 2, along.is over 150 pages.)

'Applicantls Opposition with strenuous objectionghas not been filed in bad faith because it is feared the State will again§§xreei"in bausing the record manipulated to appear as it want it to appear. ' ' `

Applicant issue of actual innocence, mount a credible claim of innocence, this Applicant's habeas corpus record will.demonstrate constitutional error with the reliable.evidence that is critical;physical evidence - that was not presented at trial.. lt is understood for.this Court to determine whether applicant has -. satisfied the burden, it mud§jmake a holistic evaluation of¢¢all the evidence, old and new, incriminating and exculpatory; without regard to whether it would necessarily be admitted_under rules of admissibility that would govern at trial. Finally, this Court must then decide how reasonable_jurors, who were properly instructedz would react to the overall, newly supplemented record. This v Court keeping in mind, the evidence, testimony of Statels.key.witnesses, that it was not as alleged in the.indictment,‘the_complainant,swestern:World Insurance Group (Vol. 2 of 2, pg. 23 ln 13»24, CR-©©$ZS) where the complainl used by the State was a complaint dismissed against,Applicant. The result the indictment is invalid.. . .

' \Q‘§»\ As Such, Applicant present to this Court the diNETL”entitl!€ specifically objects to Statelsr®riginal Answer filed. 1/ Judicial District Court of Harris County, T'exas‘t`hat".‘_,~_"»»~;~'l only twoipleading, respectively,.» _ , ~

Farnaz Faiaz, _ . Assistant District'Attorney ; Harris County, Texasi ' 1201 Franklin Street, 6th Fl.

Houston, Texas 77002

' Dr~ Alex !‘l_alvin Wada, Jg, Paralegal Spec,__ialist M_ark W. Stiles 3060 FM 3514 Beamt', TeXaS

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Dr. Alex Melvin Wade, Jr. Paralegal Specialist

Mark W. Stiles

3060 FM 3514

Beaumont, Texas 77705-7638

Cause No.: 1222385-D

EX PARTE'€. ~ , 1 § IN_ inn 185th_DIsTRICrooURT _ § 0F ` ALEX MELVIN'wADE_, JR., ' . § -HARRIS jcouNrY, T .E- X A s ' Ap;i)l-icant._l ' '

APPLICANT ALEX MELVIN WADE, JR., S STRENUOUSLY OBJECT IN THIS HIS 4 RESPONSE TO STATE"S ORIGINAL ANSWER NOVEMBER 5th 2015 '

TO THE HONORABLE JUDGE OF SAID COURT:

Applicant Alex Melvin Wade, Jr., p___se files this his Strenously objection 'and Response to State' s Original Andwer dated November 5th, 2015 for good cause as in the following: l

_ I.

Applicant strenously object to State' s Original Answer dated November 5th, 2015, page two (2) of the Original Answer three(3) paragraph of that section of the answer.

State contends applicant fourth application for writ of habeas corpus

cause number 1222385 -D, on Februaryy24th, 2014. The applicant filed an amended

lapplication in the insnant proceeding on March 26th, 2014.

State has failed-and on in an attempt to once again make the record appear ` other than the actual record should appear._This is to say; Applicant has filed` along with the writ application and the amended application an aray of memoran- dums with evidence in support. .Speci£ically; applicant alleges that he-is; :Factualhinnocence of the offense for which he is charged because there is no

complainant.

a Rec'd on 11/13/15, at Mark w. sunset

Applicant has presented to the habeas corpus court a copy of the Clerk's Record in 1222385, prepared by Salinas on June 18th, 2010 to the Court of Appeals. In that Recopd Applicant claim of actual innocence is clear, that is to say, there is no complainant, CR-OOOOA, the complaint used by the State to acquire the indictment is a complaint that was dismissed against Applicant in cause number'1116862.1he Clerk's Record is sahnzmed ` with record if not the entire record from the dismissed indictment 1116862. Further applicant has presenteddthe Statement of Facts, which is part of the Clerk' s Record where the State' s Chief Witness, Eitan Price, CR- 00328, testified that there was no complaint filed as alleged in the indictment that it is Western World ' Insurance Group that is the complainant. Therefope, the State failed to meet its burden, that is it fail to prove the name allege§ in the indictment that is Western World Insurance Group was the complainant. CR- 00002

Further Applicant list a line of filing the District Attorney' s Office has not acknowledged as part of the record.

1. Under cover letter dated February 14th, 2014 a list of documents sub- mitted to the Clerk' s Office to be filed and copy sent to the Office of Devonl Anderson, among those documents, Exhibit "A"`thru "SV, in the Clerk's Record 00036-00054,.Affidavityof Ken CasH51 f Capit l One labeled Capital One Exhibit ?N,"'Capital One,~Exhibit_¢A3,", Exhibit`"A§;", Applicant EXhibit'"ZV a copy of the contract entered between Applicant and Capital One,-attached dthereto, Applicant Exhibit Zl, the copy of the actual deposit slip and Exhibit _ "Z2" a copy of the draft deposited with CaPital_One-tO-be gent for collection. l (A) The evidence was suppressed by the State regarding Capital 0ne, which

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_2_

is exculpatory and &mgzghngm evidence used pmaeyqr by trial counsel, Lawrence

Cerf, would have shown the State's Chief Witness, Michael Coulter's testmony was prejuried testimony and the State's Exhibit "@," was a false copy of the deposit slip which was made by the Bank to make it appear there was no actual. l deposit made by Applicant. This evidence will show that used properly_and presented before a jury, a fact finder would not have found this'Applicant' guilty of attempted.theft.

2, Applicant presented under cover letter date February 24th, 2014, a memorandum brief in support of the writ application. The Court of Appeals without review of that evidence_would be a blanant denial of due process of law regarding the claim of prosecutional misconduct, knowing use of false evidence and allowing it go uncorrected denied due process of'law. Prosecational ?anWiUle_US€dae-altered testimony and false testimony denying applicant a fair and impartial.trial. ` . 4

34 'State makes no mention of the Motion filed by Andrew Smith, Assistant District Attorney, "Motion Designating Issues," filed on March 12th, 2014 which the Order Designating Issues should have been transmitted to the Court ~of Criminal Appeals.. The State Muiginal Answer make no mention.to the Order Designating Issues prepared and submitted by Andrew Smith Assistant District - Attorney and signed by the Honorable Susan Brown, Presiding, 185th Judicial District Court of Harris County.

_ 4. lOrigizna`lz-'Memorandum~Brief»undercover letter dated April 16th, 2014' specifically addressing the unresolved claim ovapplicanta Whether Applicant is actually innocence of the primary case- The cover letter is addressed to l vLeslie Hernandez, Deputy.v v

_3_

5. Applicant filed with the Office of Chris Daniel, Clerk under cover' letter-dated Marchlest;hZOf@, His amended Application for writ of habeas corpus with the attached Exhibit "E" & "F", which should as a matter of fundamental due process of law be reviewed by-the Court of Appeal as to the Unresolved IsSueS Acknowledge by'the»State:. Under cover letter dated March 26th, 2014 a proposed drafted Order to grant the amended writ application presented under cover letter dated March 21st3 2014.

l 64 Applicant sumbitted under cover letter dated March 3lst, 20145 his 0riginal Motion to_Recuse and/or Disqualify Judge Susan Brown, with heclaration, and memorandum brief in support which should be made part of the record to be presented to the Court of.Appeals.

7. Applicant.submitted under cover letter dated.April 3rd, 2014,.Applicant Alex Melvin Wade,tJr.Q Memorandum Brief In Support unresolved issue, whether the State committed a Brady.violation in the primary case.-

8. Applicant submittedxunder cover letter dated August 4th, 2014, Applicant's _Proposed Order for Show Cause and Evidentiary Hearing~ v

9. Applicant sumbitted under cover letter dated August 26th, 2014 a list of Exhibits to be made.a part of the habeas'record, Exhibits U, T`&~V,_Exhibit "U"; Appliéant's Exhibit Z, Zl'& Z2; The Jury Notes from the Clerk's Record, etc. ` v v l l

10 Applicant submitted Alex Melvinrwade; Jr., memorandum brief in support 'of the denial of effective assistance of counsel, .and an amended memorandum in support of the denial of

11. APRliC3UL writ of habeas record should contain 3m0ng the above the

_4_

1. Applicant Al@c'Melvin Wade, Jr.,'s amorardunbrief on unresoled issuevhetl'er the Appkkantrexjyaiianketdmzam§staxxaof

that should and must be presented to the Court of Criminal'Appeals in the

Writ Application"review., To not prepare a correct habeas record for presenta-

tion to the Court of Appeals would bern

", less than deny_him his due pro-

=‘~="~_z-J_=‘

cess of law.

LEGALFARGUMENT*GN§ISSUE-oF ACTUAL INNocENcE THAT ENTPILE`HIM 10 t AN.EVIDENTIARY HEARING.GN THE,GLAIMaoF“ACTuAL.INNOCENCE-suPPoanD.

3»;_11 "1111ght_of~M¢Quiggin.v;-Perkinsa~133 s.ct; 1924(2013)(¢iting`§§g192 ,§§_éé::; 513 U,S..298(1995) provide the foundation that an applicant must meet to support his actual innocencezclaim;. Applicant allegation has hurdled §§_fart§_Riochardsonz 70 S.WBd‘865, 870(Tex.Crim; App. 2002); See also.§§_§é£t_ ,§§Em§b 768 S.W.2d 281(Tex;~Criminal*App.-1988); Applicant's evidence presented in the writ filing of_Applicant, Stateis knowingly used false evidence and lthe'State suppressed evidence"favorable, whichiis exculpatory and impeachment

edidence, The suppressed evidence, the state knew existed and alled it to

go uncorrected.

_5_

. Applicant's evidence establising an insufficiency-of-the-evidence standard equivalent to that of Jackson vi Virgina, 443 U.S. 307(1979); the logic of presentation of the evidence, newly discovered and suppressed evidence is tomnake clear, the Applicant evidence, if presented to the jury and used properly would have established that a fact finder would not have found this applicant 'guilty of attempted theft. 4 l

However, the Glerk' S Record, which is part of the habeas record and the

' same should be made part, contain no complaint by Western World Insurance Group and that along that state did not meet it burden of showing the es§ential element of the indictment, that is Western World Insurance Group was the :complainant- (SaagROOOOZ, against CR 00004 and CR..00328, ln 13-24).

Applicant eviderr,e ard d'\e_'Clerk's Record do nakea‘ colorable slum'g of--innocence "by showing that he might not, orteven would not, have been convicted in the absence of evidence claimed to have been unconstitutionally suppressed by the state and applicanhtdenial of the effective assistance of counsel at a critical stage of the proceedings.; Rather, as Applicant evidence haslshown "fair_ probability'that; in light of all the evidence, including that alleged to have been false, perjuried testimony(but due regardsto any>unreliability'of_it) and evidence tenably claimed to have been wrongfully exciuded or to have become b available Only after the trial, the trier of the facts would have entertained

,a_reasonable doubt of his.guiht." b b l

f The Supreme Court has held that defendants must meet an "extraordinary high" standard and threshold showing of innocence before habeas proceedings will be appropriateTnHerrera 21 Collins; 506 U;S.-390(1993) see also, §§hlup !:;Qelpinsup£a; Applicant can bring claims-based on newly discovered evidence

_6_

under habeas corpus division. State §§ rel. Holmes vi Third Court:p§_éppea135 885 S.W. 2d 389, 397-99(Tex.Crim.App. 1994), overruling Ex Parte Binder, 660 S. W. 2d 103(Tex.Crim.App.1983). An Applicant as this Applicant seeking habeas 2 relief based on a claim of "factual innocence," must, as a threshold demonstrate that the_evidence, if creates, a doubt as to the efficacy of the verdict‘suf--v ficienly to undermine confidenceein the verdict and that it is possible that the verdict would be different. Be.it noted§'Ekhibit$"A" thur "S", (CR¥OOO35-56) was never presented before the jury nor was the exhibits properly made a part of the record; once_the threshold has been metz the habeas court, which is this Court must afford this applicant a forum and an opportunity to present his evidence, Holmesz 885 S.W.Zd at 397. .Applicant has made his prima facia show- ing, which is with clear and convincing evidence the Court of Appeals is-en- titled to review in the habeas record that appears to being put into place to l forward to the Court of Criminal Appeals. However, Stater Original Answer do not make reference to the State's Motion to Designate Issueaand State's Proposed Order to Designate lssue, filed on March 11.&'12,=2014, that must - be made a part of the record. (See;.Exhibit "A" 1 thur 4, attached hereto)

lt appears, since the State is attempting to cause the record be incomplete,_ thereby, in Short hiding from the Court of Appeals a complete record, it is nothingh"less-that as it has done in the Clerk's Record, 1222385, in the 185th4- Judicial District Court, Harris County, Texas manipulated knowing the record n should show in it entirty. k l

It is for the above.reasons, this Applicant strenously object and respond to State's Original Answer of.November 5th; 2015, respectivelyl 4

State+s initial Motion to Designate lssue has been granted and the same, has not to this day been responded to by the State in this mattert`

_7_

` CONCLUS ION.

For the foregoing reasons, Applicant Alex Melvin Wade, Jr., prays this Honorable Court overrule Stateis Original Answer filed November 5th,_2015- some one and a half year after the Court Order Designating-lssue was signed" and presented to the 0ffice of Harris County, Texas District Attorney, Devon . Anderson, District Attorney. `

Further, if this Court deem that it should grant State's Original Answer, Applicant Alex Melvin Wade, Jr., prays this Honorable Court issue it order directing the Office of Chris Daniel' Clerk of the Harris County District ' Courts forward the complete habeas record, which contamn the list of pleadings and exhibits to the Court of Criminal Appeals re&mexedherein.

There is no Order attached hereto because it has been the understanding of the undersigned that in matters of this sort. This Honorable Court tradi# tionally writes its owna Thus,-the rule requirement asked be waived.

.Respectfully submitted,

Dr. AlexM M§lmn nge, Jr. Attorney o Recor

Mark W. Stiles 3060 FM 3514 ~ Beaumont, Texas-77705-7638v

CERTIFICATE OF SERVICEF

l, Dr. Alex Melvin Wade, Jr. , pro se herein hereby certify a true and correct copy of the foregoing Objection has this November 17t8th, 2015 been served upon the Office of the Honorable Devon Andserson, District Attorney harris County, Texas at 1201 Franklin Street, Ste 6th fl. ,Houston Texas 77002, postage pre paid and deposited in the prison' s mailbox on and at Mark W. Stiles Unit, 3060 FM 3514, Beaumont, Texas 77705¥7638.

Dr. Alex Melvin Wade, Jr. Attorney of Record.

.` :'.z§\::_~;;;.

. 1 PAGE 211 1@/14-/2@15 19=,5.4 M_ m m _

1211/00 ZZM

Cause No. 1222385'~1.')

1 EX PAR1E . - §` 1:N ms 185IH DISTRICT coURr . . oF ALEX MELVB\I WADE, JR., , . Applicant v § HARRIS coUN'Iv, TEXAS

STAW’{NNA'

. 1 s stowers REQUESTrNe-Bssrassstesasssstvs- The State of Texas, by and through its Assistant District Attorney for Harris Co11111y, requests that this Coiut, purspant to TEX CODE CRIM P.ROC. art. 11. 07, §B(d), designate that the following issue needs to be resolved in the instant proceeding § v 1. Whether the applicant' is actually` innocent in the primary case;

2. ,,Whether the applicant received ineffective assistance of counsel in the

_ primary case;

l 3 Whether the evidence was msptiicient to convict the apphcant 111 the primary

--._ _. -.__._.-..,_.~ .,.._ .... _

-1__ , __ .. _.? . .. .._~ .. _ ,_

case;

v 4. Whether the State committed a Brady violation in the primary case; and-ill

5 Whether the State allowed perjured evidence and false testimony in the primary case. l t 1.~ 1

EXHIBIT "A"

1@,’14/2@15 19:54 Mmo ME~ mh PAGE 94

4.~'\

Service has been accomplished by mailing a true and correct copy of the foregoing instrument to the following address: Alex Melvin Wade, Jr. #1624189 - Stiles Unit

3060 FM 351-.4 Beaumont, TX 77705

sIGNED this 11th day of March, 2014.

All'dre mir

Assistant drst;t`ict Attomey

Harris County, Texas

1201 Franklin, Suite 600 Houston, Texas 77002 ;

, (713) 755-6657 ~ Texas Bar I.D. #24048100

' Prepared by: h Emily Patton

4 ~_._.~____~

mimms m ' PAGE 92

19/1¢1/'2915 1‘3: 54

cause NO. 1222385_1:) `

EX PARTE § iN THE 185TH msch couRT § OF ALEX MELV]N WADE J`R., » 4 - Applicant § HARRIS COUNTY,"IEXAS STA'll`E’S PROPOSED ORDER DESIGNATING ISSUE '"` " "` _"`Tlavmg reviewed the applicants petition for Wn't 01 "habeas coipus, the Couit finds that the following` issue needs to be resolved` in the instant proceeding 1. Whether the applicant is actually innocent in the primary case; 2. Whether the applicant received ineffective assistance of counsel in the primary cese; 3. Whether the evidence Was insufficient to convict the applicant in the primary case; l l 4. Whether the State committed a Brady violation in the pn'maiy case§ and

5 . Whether the State allowed perjured evidence and false testimony in the

"""' '~-__“-~`..»-._-. ~... ' ""‘"`-“" "'°‘ “~-*---- ---'“-~~' o_-- ___- .._,_, .. .._, 4 ¢

primary case.

Therefore, pursuant to Article '11.07, §3(d), this Court will resolve the

above-cited issues and then enter Hndings of fact.

w P¢>.GE; 33

18/14{2@15 19: 54

/\

The Clerk of the Court is ORDERED NOT to transmit at this time any / documents in the above-styled case to the Court of Crirniiial Appcals until further order by this Court.

_ `lBy the following signature, the Court adopts the State’s Proposed Order Designating Issue in 'Cause No. 1222385~D.

SIGNED ontheH 'd-ay_£,f “' " " ' b ~ .- .;_2_6 4.__

,__-.

PRESIDING J'UDGE

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