_ @s,§s§~ 2a
Dr.ALB;M§yh1WIb,Jr. Paralegal Specialist Mark W. Stiles 3060 FM 3514` Beaumont, Texas . 77705-7638
December`zlst, 2015
The Honorable Abel Acosta, Clerk 4 `
Texas Court of Crimimal Appeals P.O. Box 12308 ' Capitol Statiohn
Austin, Texas`7871142308'
Ref;,», cause No..v 1222_385-D/ccA # 65,555-20;_ Applicati¢nrfor_ writ of Mandamus '
Dear Mr. Acosta: . » ' .' ' t
Enclosed herewith.please"find.the Original copy/of Applicant Alex Melvin Wade, Jr., object to the Supplemental Record filed with the Court on December 8th, 2015 with the attacment, Affidavit of Kenneth`D;fCash,"Applicant;Alex Melvin Wade, Jr.,'s memorandum brief on unresolved>issue whether the Applicant received ineffective assistance of counsel in primary case; Applicant Alex Melvin Wade, Jr.,'s memorandum (Amended).brief insupport of the.unresolved claim of ineffective Assistance of counsel and insufficieny of the evidence in the primary case, with copy of the jury_instruction and.juryis note thats to be filed and attached
to Applicant s recently filed docket sheet from the 185th Judicial District Court printed from the Chris'Daniel, Clerk's website showing the list of_seven (7) pages of=filing._ ' " `
Please have these-documents attached together and presented to the court upon submission of the file in the above entitled cause of action;
I thank you ery kindly for your attention in the handling of this matter.
/‘,
" ` - RECE|VED |N // f - ` ' , . couRToFchM\NALAPPEALs
IEC 28 2015
Abel Acosta, Clerk
Dr. Alex Melvin Wade, Jr. Pro Se
Paralegal Specialist
Mark W. Stiles
3060 FM 3514
Beaumont; Texas 77705-7638
vCause No. :65 ,555- 20
IN THE TEXAS COURT OF CRIMINAL APPEALS STAJE OF TEXAS
Re Re: Alex Melvin Wade, Jr. Relator
ON APPLIGATION FIR AN WRIT OF MANDAMUS § CAUSE NO 1222385-D IN THE 185th DISTRICT COURT FROM HARRIS COUNTY
APPLICANI AL.EX MELVIN wABE JR. O__BJECI 10 THE SUPPLEMENTAL ‘ ' RE“RD FILED wITH"` THE COURT.»`_` o_N DEGEMB ETS;H ZCIB"
MAY IT PLEASE THIS HONORABLE COURT.:
COMES NOW Alex Melvin Wade, Jr. , p___ se, files this his objection to the Supplemental habeas record, presented by the Office of Chris Daniel, Clerk _ of Harris County on December 8th, 2015,_in response to the ordertissued by this Court on November.éth, 2015 for good cause as follows:_ , . l
g n Ih.`_ _
Applicant confined in Texas Department of Criminal Justice, Mark W.=Stiles 3060 FM 3514, Beaumont, Iexas 77705- 7638 received the Clerk' s "white card," December 18th, 2©15.t€n day after the filing of the record, :that is alleged to be supplemental record consistent with the Order of this Court on 11/04/15. This objection is presented within 10 days of receipt of the whiteocard notice. of court proceedings, therefore, Applicant' s objection is filed in a t1me1y manner.
' 11. ‘ Applicant's objection is based on if the supplemental record filed with
this Court, is inconsistent with the copy of the docket sheet printed from
the online website of Chris Daniel, Clerk of Haaris County, Texas District Courts that Consiste of seven (7) pages listing the pleadings and filing and fore- more than alleged by the State' s ®riginal Answer filed November 5th, 2015. The docket sheet list all filings submitted to the Office of Chris Daniel dur- ing 19 months before the filing of Relator's Second Application for Writ of Mandamus. The list show the State' S Motion Requesting Designation of issue filed 03/11/15 and signed by Judge Susan Brown on 03/12/14. Applicant intent is in the filing of.this objection to the supplemental record so it can not be considered waived by Relator if in fact the record is not consistent with the docket printout of the Clerk Record in cause number 1222285-D.
Applicant' s unresolved claim of "actual innocence is supported by sub- - stantive claims of prosecutimnal misconductr:and ineffective assistance of
counsel." Applicant must be provided a forum to:atsUImLIe his claim of
actual innocence. 11. Applicant contention in objection to the supplemental record presented to this Court by the Office of Ghris Daniel, Clerk on 12/08/15 not be consistent
with the printout of the docket sheet will result in blatant violation of
Relator' S due process of law in this habeas corpus proceeding. Relator herein.
attaches an affidvait discovered after the conviction and was known to exist by the State' s prosecution authorities and used properly by trial counsel would have oaqxunke '; and impeached testimony of State key witness Michael
Coulter. The testimony of Michael Coulter was false and/or in a materially misleading manner in this case. See Exhibit "A" of Capital One. `Relator lower court habeas record show and direct the location that there is no
complaintant supporting the actual innocence claim.
_2_
The Clerk Record filed in WR-65,555~24, CR-OOO36-00052,_copies of¢exhibits that should have been used and used properly would alsocomprqmise -the.test- imony oertate's-Chi f Witness,.Michael Coulter. 'The Testimonmyof Michael Coulternwas manipulated by the Prosecutors to make it appear before the jury the draft in the amount of $285,000.00(Two Hundred Eighty Fi e Thousand Dollars) could not be~processedr -Exhibit "A" thur "S" show the drafts that were" identical to State's Exhibit "I," were processed through different_banking facilities. 'These exhibits used by competent trial could would have impeached the testimony of State's Chief Witness. n l 7
Be it noted, the complete habeas record will show where trial counsel was ineffective in his representation one of the substantive claims warranted to. support Applicant/Relator actual innocence}f The.Courttnot having a complete record as Ordered by this Court in this cause of action, will result in Relator denial of due process of law._ n n
111;
Applicant's objection at to the claim_of'"actual'innocence, is not cognizable absent an indepent constitutional violation in the underlying criminal;pro- ceedings that L§d.to this;relator's`conviction. State' s Griginal Answer is ' not_coxnsumtm&didehabeas record Relator' s claim of actual innocence, based on the habeas record and not limited to the evidence presented in the habeas record in light of T’Hcmhse v. Bell 126 S Ct. 2064, 2076- -77(2006)(Applicant n asserting innocence as a gateway to defau lted' claims must establish that in light of new evidence, it more likely than not that no reasonable juror would have found Applicant guilty beyond a reasonable doubt)(quoting Schlup v. Delo,
_3_
513 U.s. 298, 327(1995). lv.
Relator/Applicant believes'that if he is deprived of the right to present his common habeas corpus claims include_Sixth Amendment claim of ineffective. assistance of counsel Strickland v. Washington,m466 U,S. 668,,687(1984), prosecutional misconduct, see, §Xlg§_!:_Whitele 514 U.S. 4l9, 453(1995)
_ (due process violated because suppressed by the_prosecution of exculpatory evidence that, if disclosed, could reasonably have altered result of proceed- ings) see also §§adx_:; Marxlandz 373 U.S..83, 87(1963)§due process violated if; (1) defense requested suppressed material; (2) prosecution suppressed evidence favorable to defense upon request; and.(3) evidence is material to guilt or punishment). CR:OOO80-000871Counselw£iled Motion adopting pre- vious filed motions CReOOOZO-OOOZZ ~The`newly discovered evidence suppressed by the prosecution is the kind of evidence that falls within the pale of -Ex Parte Adams; 768 S.W.Zd 281(Tex.Crim.App. 1989).. The.newly discovered evidence was withheld by the prosecution office through it employees of the investigation'agency»
i.Applicant'being unable.to have the entire record certified to this Court where the filing are specific as to.the error and direct the Court to the errors supporting his "actual innocence,"`claim and not limited to Relatoris .substantive claims will result in denial of.due process of lawi*if the sup-- plemental record is not consistent with the printout-of the docket sheet in cause number 1222385¢D`in`the Office of Chris;Daniel, Cler, Harris;County,
Texas.' Applicant's objection is based on the above being unable to be reviewed by the Court of Appeals in this cause of action.
.;4_
CONCLUS ION For the foregoing reasons, Relator Alex Melvin Wade, Jr., files_this his objection to the supplemental record presented by the Office of Chris Daniel, Clerk Harris.County, Texas District Courts, if not consistent with the filing
listed in the printout presented to the Clerk of Co ’ f cover Sheet dated
fCERTIFICA'" OF`SERVICE " -
I, Dr. Alex Melvin Wade, Jr. , pro se herein hereby certify a true and correct copy of the foregoing objection has this¢? day of December 20155 been served upon the_Office of Chris Daniek, ’Clerk' Harris County, Texas and to the Office of Devon Anderson, District Attorney, 1201 Franklin St.
6th Fl., Houston, Texas 77002, postage prepaid.
Dr. Alex Melvin Wade5 Jr. Attorney of Record
(\
lN 'l`lll€ UNl'l`l-`.l) S'l`.~\'l`l€$ l)lS'l`Rl(."l` (.`()UR`I` FOR '|`HE SOU'|`HERN `DlS'l`RlC'l` OF 'I`EXAS ll()US'l`ON DlVlSl()N
/\l&#ll~iRlC.`/\N ("(')N`Slll.'l`AN'l`. l.l€G/\l. l.l"'l`lGA'N'l`S_. .l’/~\RAL[{GALS. j l’.R()'l"l:`-SS|ONAL ADJUS`|`ERS & " » l`lNANCl./\l. BROKI`RS. and; /\Ll: .'\' Ml:` LVlN W"\DE. JR.. ' - " ClVll. .A(."l`l()N N(). 4: |()~Cv-Z"lS-’l-O()l `
l’ltiintitt`s. . ~ vs.
CAPtjt‘ot. oNt~;. N.A..
za'.botroc'/Jem;=ar,vzw.‘fr.vn'=o.vl»’aa
)cl`cndaitt. j AFt-‘tt)'Avt'tj oF KP:NNETH t)§ CAStt . ~'.~‘;"*1"..»\"1"1.~;1)1'-' '1:‘t'ax2xs § " __1_;‘1.)111~1'1'11<.)1¢1~-1/\RRIS §‘
1313 "l`()Rl§ Ml£ the undersigned notar), on this da_\- personally appezm. d Kenneth l) C;tsh.
_tlte 111"1`12'1111.2'1 petson Whos_-c identity is known 10 mc. Alter l administered an oath 10 affiant
alliant testified
' l. "M_\ name is Kenneth D C`aslt.- l nm over 18 yems ot age. 01 sound mind, and - . capable ol inaking this affidavit "llie t`acts- stated in this ai`i_`tdzt\it arc within mv personal knowledge and 211“e true end correct
` 7 l am cutrcntl) employed b) (`:~intztl ()ne N A ( (T;tpitzt| ()ne ) 213 an Assistant
\" tee l’t_csident and Senior l mud lnvesti tttor. l tim also ufeustodiztn` o_l the records ol` '(1'21 itul .1.'~. P
()nc. l am responsible 1`0r ensuring that C.`ttpital ()nem maintains accurate and complete records ol`
its regularly conducted ztetivities. including tttxesttgnuons ol` dra|ts submitted 1_`or deposit and
' » collection
` .cAi>ITAL oNE ‘* EXH.IBIT A_
(.`upita| ()ne (`.`onl`tdentiztl~ l -
3. ‘ 1'\ttaclicd_ to this all`ida\'it tire 7 pages ol"records' l`rom Capita| ()nc. identified as l£xhihits A-l through /\~4. `l`hc 3 pages attached hereto.as l`-.xhibits A-l and /\-3 are true and correct copies ol` documents presented to Capital ()ne for payment as insurance dral`ts b}-"Alex M. W:ide in April and May 01`2007.
4. 'l`hc 4 pages attached hereto as Exhibits /\~2 and ./\-4. were made at or near the time ol the occurrence ol the matters set forth by. or from inlomiation transmitted by a person v ' with knowledge 01 those matters; were kept by Capital ()ne 111 the regular course ol` business: and were made h_v thc regularly conducted activity as a regular practice n lhe attached rccords. ` Exhibits A-Z and A- 4, which are incorporated herein by rel `ercnce, are exact duplicates 01` the
l original reeords. _
5. _ (`)n or about .April 3, 20071'Alex M. Wade attempted to'd'cposit into a Capital ()ne account a document purporting to be an insurance draft dated March 5. 2007_. made pay able to Antericar`i Consultant_. an exact copy ol which is attached to this alli_da\" _11 as l.lxhibit A- l l)urii`ig
4 my investigation of this document, l determined that the document stated a different amount in written than in_ number form ('°-"l`Wo `l-lu_n`dred lr§ighty`I'-`it’ty Thousand" and -"285.000,00")_. misspellcd'- Capital' One; N.A'. as "'"Captial"l‘ne" Bank." identili'cd' an entity abovc'the- signature which didno`t match the entity identified `aS` the issuer bore a signature l`or the issuer that matched the signature oi` the payee/dcp_ositor, contained rcstrieti\e instructions on the back and ` that there was no remitting bank identified on the face 01 thc doctun_ent. l`he document w as sent
-' 1er collection and retained -‘"l or thcsc reasons Capital One determined that the document was not
legitimate dral`t and confirmed that with the ii§`ura_nee companv identil`t 'd in the document 6. ()n or about May 30,2007,Alc14 M._ Wade attempted to deposit into his ( apit_al‘
_ ()ne checking account a document purporting 10 be an insurance drall dated M11y 28 2007. made
r.
1 1
Capi'tal ()ne (."oni‘ideutial- 2 -
_ i"rn_;.'_in thc amount ol`$7,922.00, an exact cop)l ol` which is attached to this u|`liduvit us
lau, ol thc clocumcnt. l or these rcasons._ Capitn| Onc could not process lor collection tl1c $7 _922. ll_(l document as a dratl and C`upitul Onc determined that thc document was notz
A" ,l__cgititnut_c draft and conlirmcd that with the insurance company idcntil`lcd in thc document,"
/L.w,& ¢/
Kenneth D. Cash
SW()RN I() and SUBSCRIBF€ l) before me by Kcnncth [). (,as§ oUlctobc _Ol().
@Jtary Public
51)¢12396¢.4
§ JEsstcA 1_. vlLLALoBos
*D - umwa . .f` STATE O_F TEXAS . MyCo¢mExpS¢pmhor$,Zot
L"apitul Unc L`onlidcmial- 3 ~
r"
?
' 24.May4)7
External Fraud Inv. Case Report
Executive Summary
' Capizal 0)101/200 700288 7
veritication, it was discovered that the check was counterfeit.
Case ID: 2007002887 wADE,A.Ch¢¢k qud Dace opened: 5/24/2007 sAR same SAR Fited 5/24/2007 Da¢¢Clos¢d; 504/2007 Exteroa| Inv¢ltigato 108 ~
priority M¢djum Externa| lnvdtlgato Ken D Cash s_¢ms- » csP-clo's¢d/sAR‘ Filed with Polic¢ Sv‘r¢d lnvwia=wr |D Resolution: Not Related to identity y Sh*l'¢.d lnv“uglf°" Manager Closed No _ ' l - . _ Loss anch m: 427-09 £xposure SZB$.tlt)t).no ' L'o” Cost Centm ' _Prevented; 5285.01)011_11 pass much _Lo¢acion=' HSN-Hco~Ri-:s`ECH wDLNDs Bus BNKG - "'°° P'°""" """ "" l ' n 2404 Rcsearch Forest Dr. n Pmc. Re"lq-Wr'“ w®dlmds ' f TX ' - |.m Risli: w m . _ ._ ` ., l lnv Recovery; _- $_u.'¢m
. Legal chtcy; c_api;uon¢ Nec Lbss: _ so.oo Catégoryi - 12' ¢hccl; Frauo Settlcments:` ' ` $0.00 subcategory Noc on Us counterfeit NLAs= so.oo ryp¢; `Excenml BsA Am¢uoc= so.oo
Lost or'Stolen Items
c When L_ost: Addras Lost: . # or new Losc.. o ' 'an»`wi¢h card No Ch¢ck N_umbe__rs Starting 0 _ PIN Revea'led: No . Endin'g Ch_eck Number:` 0 ' Other Used': No - Other M|ssiog Items: New Account # _ '.Case,_Clgging_; No_t¢g '- Customer presented "lnsu_rance Drati*f" 1n the amount of$285. 00_0 00 for collecnon. t pon ' _
' ms me win _b¢ referred co me Pas'adm Poiic¢ bepa€un§nc,' sgr. sherman - 71_3475-7899.
CAPITAL ONE v
EXHIBIT Az /'~.L»\~/
Case 4:10-cv-02454 Document 45-3 -~Filed in TXSD on 02/03/11 Page 2 of 3
" ` Extemal Fraud lnv. Case Summary
_ ease to 2007002887
24-May107 WADE,A-Ctteek Fraud
‘ HOW DISCOVERBD 4
Capital one Branch Sales Manag¢r (East Spring Branch, Spri_ng, Tcx_as) notified E,xtemat F rand
lnv¢nti@tions of suspected fraudulent activity on Capital Onc Rescarch Forcst Branch (The Woodkmds. ` customer American Consultant Legal Litigants, (signcr Alex M. Wadc) account ii
Te_xas) banking _ 3801609774 (opeued 03/15/2006), discovered by Mr. Coultcr.
_SUMMARYOFFAC’I`S " _ Invcstigation revealed thatMr. Wade visitedtheEastSpdng Branch of CapitalOnetoeonipleteaCapital One CouecdonReociptandAgteanemforaninsmnncedmtithathewamedeonected Mr.Wndesigned,. theagreemmtmdlcda€apimlonedeposnshpmdtheinsmmocdmdfmwnwdonbythebank The followingitemwaspresenwd. .
1 \L1
l A .' ' l'. X' ;. ' l odor lnsumtwe' Company Ameriean Consuhnm
4/03/01 1016-ko 328 ,ooo.oo ma __
Theitemwassentforcollectionandretumed. 'I"heinsm'anccdrahwasreviewedand itwas recognized that the nnmeric amount was $285,000.00 and the written amount was "Two Hund.red Eighty Fit`ty ’I`housand". instructions on the back ofdraft had misspelled Cnpital One Bank..
He further recognized that the drafting _ 'I‘he.bank name was spelled "Capital Ine Bank" and that the instructions also showed restrictive instmctions on the draft which could not be verified.' Additionaiiy, Mr. Coulter recognized that there was not a “r¢m.itting bank" on the draft . -
lnvectigntor' received a telephone call_ from Ca.pital One Legal Dcpartment on 04/`2212007 stating that .\'lr for non payment lnvestigator explained that the check had been verified
Wadc was inquiring to tile reason ` with theTudor Insurance Company, Eiw,n Priee ar 201~847-2887 and the draft had been verified as comnet'feitbyb/fr. Priee. . 4 » 'STATUS OE ACOOUNT/CASE _* Thecustomet’swcomxtis indicpmcessofbeingelosedand€apitalonevdllnot'sud'eralossonmis account This case will be referred co SGT. Shetman (‘713~475-7899) ofthe Pasadeua P'olice Depa`ntmenz, Pasadena, Texaspor.hiszequest. A SuspieiousActivit_yReport(SAR)willbesentto the Financial Crimes _Etg'groement Network (FinCEN). . coNTRQL DEFICIENcrEs/PERSCNNEL Acrto'N'TAKEN ‘Ihere were not any control detieiencies. , ~
08pr 0n02007002887
Case 4210-Cv-02454 Document 45'-3 Filed in TXSD On 02/03/1'1 Page 3 Of 3
Externnl Fraud Inv. Check Fraud incident Report
5/2¢/2007 . External Inv K,en D Cah Cns¢ lD: 2007002887 Cntegory: 12 Ched¢ Fraud WADE,A-Check Fraud
Not On Us Counrerfeit -
41710-HSN- EAST SPR[NG RTL BNKG (l)
dateOeenrred: 4/312007 Expoeare $285.000.00 'I'u`neOecnrnd: ' P'revented: 5285.000.00 mention ms 41710 I.oeotion: . SN-EAST SPR.ING RTL BNK l Juraat¢uoo= N°‘ l'°"‘ 5°~°° l Bow Diseovered E.mptoyee Dctected - _ roney vtqtanoo B“k m 1 ` No .Violmim ' . faa Bnnch lD: 42709 - ~ 1 ~tmt.mu¢m= HsN-Hco~ttnsscu wonan l Lou Co¢t Cenner: . | haw m | ‘ ' ; N¢v'vAeeomt O . Prv¢md D¢v' 4/3/2°°7 t ovumcww O ; l Tim¢ mask ` 1 item nm 3/5/2007 V" mt j mention 41.110 ::‘:=S°°“‘"" '°°°°“'° 1 HsN-EA$T sran~to nrt. BNt
ZL
Dr. Alex Mélvin Wade, Jr.
Paralegal Specialist
Mark W. Stiles
.3060 FM 3514
Beaumont, Texas 77705- 7638 Cause No.; 1222385-D
Ex Parte AleX Melvin Wade, _Jr., IN THE 185'th JUDICIAL DIS‘I‘RICT COUT
§ Applicant. t § OF
§ HARRIS coUNTY, T E'x A s ‘\K APPLICANT ALEX;MELVIN wnDE, JR.,'s MEMoRANDuM BRIEF oN UNREsoLvED IssUE dm
WHETHER THE APPLICANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN THE PRIMARY CASE
FAcTs oF run IssuE REGARDIN¢ DnNIAL,oF EFFECTIVE.ASSISTANCE or ooUNsEL
Before- continuing, .Applicant reinerate} Counsel for Applicant elicited from State's Chief Witness, Eiten Price, Claim consultant of Wcstern World Insurancc Group, there was no complaint, filed by Western World Insurance Group as valleged,`in 'the» indictment. 'CRlOOOB¢ lostimony provided by Eiten Pricé, it' was not Western Wbrld Insurance Group that filed the complaintt& ` vol; 2, .pg '23 lns 13-24; Lawrence cerf, Attorney‘At Lav failure to ri1e a motion to dismiss' the bindictment and/or motion for a directed verdict,
which' he would> have 'recéived, is nothing less than the denial of efféctive
assistance of counsel at critical stage of the proceeding. §Illight of Guytonl'_;
v. State,732 SW 2dT724 the motion would have been granted.
Counsel misconduct at the critical stage of the proceeding prejudlce
Applicant in the receipt of a fair and impartial trial.
Counsel did not meet the burden as a effective trial counsel for Appllcanf the result is that of ineffective assistance of counsel.;$ce," Strnckland v
thhingt0n1_466 U.S. 668(1984)}
Lawrence Cerf, Attorney At Law failed to allow exculpatory evidence into the trial which deprived Applicant of evidence that would have impeached State's. witness during cross examination that would De&i& testimony that prejudice Applicant during the trial. ( CR 00132) 2
w'I_he. evidence State' s Exhibit l7 of l9 held by the State as 404 evidence of alleged wrong conduct. '( CR pp._ 31-57) The evidence would have shoyn the l7 commericial items of Applicant was processed and the testimony of State's Witness, Michael'Coulter, Capital One Bank Manager was false, manipa-- lates by lthe State. in direct examination of the witness. Further, State's Exhibit- ”2",‘ the ialleged- deposit 'slip of Applicant is false and knowingly false evidence,- allowed go uncorrected by the State cause Applicant be prejudice before the jury. Trial Counsel' s lack of investigation as to the texculpatory evidence that he was aware of, that was part of indictment 1116862 and should been~ used 'to impeach State's Chief Witness{¢Michael Coulter on crossf examination was deprived of by his own trial attorney, Lawrence Cerf, during and throughout the= trial;. Byrant v. Scott, 28 E.3d l4ll(5th Cir. -1994); Nealy v. Cabana, 764 F. 2d ll73(5th Cir. 1983) see also, Butler v. State, 716 S. W. 2d 48(Tex. Crim. App. 1986). Lawrence Cerf, Attorney at Law's acts alleged by Applicant are not allegation of first impression. 22 &_ ' l Lawrence Cerf, Attorney At Law failed to do an adequate preetrial investi gation ~as to_ interviewing of witnesses. Cerf failed to interview w1tnessess -of Bank of America, N. A., that would have been impeachment evidence of StaB§ s
Witness Micha el Coulter, regarding the processing of commericial paper process
that State' s Exhibit 17-19, was in fact identical to State' sw Exhlblt "l;
/»>"/ "rl
used in the `trial. The items presented to Bank of America, N;A.jfg§§?been`-
_2_
-' processed and- credited to the account of-American_Consultant Legal Litiga- nts, Paralegals,- Professional‘ Adjusters & Financial Brokers and the account of.Dr. Alex Melvin Wade, Jr., under Social Security number XXX-XX-XXXX.v
Lawrence Cerf, Attorney At Law was paid $650.00(Six Hundred Fifty DollarsO ford the ‘purpose of.subpenoaing 10 defense witness. The witness Jimmy Brown, Attorney At Law, would have testified as an expert witness concerning insuranc draft7 and. how’ bank's normally process to item for collection. Jimmy Brown, Attorney At Law, would lhave-provided testimony as to the different between linsurance-drafts and bank 'drafts. The testimony would have impeached the testimony' tQ` State's Chief Witness Michael’Coluter}Manager » of Capital One, N,A., and provided credibility to the conduct of Applicant as to the deposit of. Starte‘s vExhibit "l”., vthe evidence would have cause the outcome of the proceeding to be. different. Ex Parte Guzmon, 730 S.W.2s 724(Tex.Crim.App¢ 1978).' n
Lawrence Cerf;- Attorney `At Law .subpenoaed ~Federal Deposit Insurance Corporation~ (FDIC) personnel .to testify,, when if investigating theV matter would have--known~ that he could not have subpenoaed FDIC.personnel but could have subpenoaed, Bank -of America, N.A;,'s personnel whom testimony would have. been .the- item,' that is identical to Statefsv-Exhibit "l*, could have- been -processed through normal banking procedure-andthatr Bank of America/ N.A., had previously accepted and process items identical, with the exception of the amountthrou§h it's collection departments. n
However, Cerf Would have discovered, FDIC could not have been subpenoaed
because it_was not a party to the litigation.»
_3_
Therefore, it is clear, Cerf's failure to interview witnessess whether prosecution witnessess and/or defense's witnessess resulted in defective
counsel. See/ Byrant v. Scott/ supra, Ex parte Duffy, 607 S.W.2d 632(tex.
` Crim.App. 1980).
_ Lawrence Cerf; Attorney- At Law failed to subpenoa court proceedings and trial`-filing‘ in Alex Melvin Wade, Jr.; v. Dominion At Woodlands, filed in montgomery County District Court clerk office and evidence was necessary in this proceeding, Testimony of State's Witness, Eitan Price, Applicant did in fact file .as mandated by State’lehief Witness normal filing in the proceeding7 as if ~an attorney pat law, even though Applicant was acting pro se in the handling of the lawsuit. (Vol. 2 of 2, pp. 4-27)
lt appears that‘ Cerf's trial defense was that of a text book defense, and was and is recognized by the Court of'Appeal; See, Gibson v. State/ 634
S.W.Zd 700. However, since Cerf was unaware of the defense put before the
.jury, _of not mere perparation, also established a defense of legally insufe
ficiency of the evidence;
Cerf failed 1 to request jury- instruction based the 'defe'nse'put before the' jury- The law guided by. the Defense would have mandated a motion to dismiss the indictment and a directed verdict of not guilty be entered.Cerf‘s failure to request the jury instruction applicable to the defense, not limited
to~a jury instruction, requesting a hreasonable»doubt instruction," an instru
` ment on mere perparation instruction and on an instruction regarding defendant _not testifying and a instruction adequate and should have been part of two -
- pary jury instruction provided to the jury and appears to be an instruction
of-a directed verdict of guilty.
The Courtrecord; of Alex:Melvin Wade, Jr., v Daminion.At Woodland, would entitle Applicant to an instruction of the "right to claim," recognized by' Judge Brown, 'the 'Defense put on by Cerf, Judge Brown acknowledge the same and would have granted an instruction in that regards.
Mr. Cerf:.Okay,.All right then, '
THE COURT: I'm not going to let that happen.
But Counsely what l think the difficulty is¢ based on the testimony that you elicited and fact these are drawn ong Western World, is that he did this - - my understanding of what vyou are trying to prove is that this is merely a request.
MR CERF: I' m sorry ` ‘ THE CUURT: Right isn' t that your defense? ' MR CERF: (Nods head affirmatively. ) ' THE GUURT: Okay. My undestanding of your defense is that this was- his way of settling his lawsuit with Western World,
Is'thatqright?
MR CERF: Yes, Judge.
(Vol. 2 pp. 938, CR 00333-34) In support of Cerf’s defensey State's Chief Witness agreed. (Vol 2, pg 37 v (CR 00337)
16 Q.7 And it would be fair to say this, that Mr. Wade con- ducted this claim in an orthodox way.
18. A. I would say so.
Cerf should have.moved at that point/ a critical stage of the proceeding
lfor a dismissal of the indictment; Applicant conduct was not criminal and
that alleged in the indictment contending the ¢Omplaina§tis Western World Insurance Group, the burden was not met.
lezState.failed to prove the essential element of the indictment that the named complainant, Western World insurance Group, the complainant is lacking in evidence.d ' l _ - n STANDARD OF'REVIEW The- Sixth lAmendment' guarantees the ;right to effective assistance of
-5-
counsel in a-criminal prosections. Before continuing/ Lawrence Cerf, _Attorney At_ Law- was retained counsel. The right to effective assistance of counsel applies. to both retained and appointed. See, Cuyler v. Sullivan, ' 446'0.3. '3`35, 344-45(-19'_8`0)
In Strickland v. Washington, 466 U.S; 668(1984), the Supreme Court established a two-prong test to evaluate ineffective assistance claims. at 690._ .To obtain reveral of a conviction under Strickland standard, the Defen- dant must prove… that counsel's performance fell below an objective standard _of reasonableness. _See,, Granados wv. Quarterman, 455 F.3d 529, 534(5th Cir. 12006)} and nthat-'counsel's deficient .performance prejudice the defendant/ vresultingin.an"unreliable or fundamentally unfair outcome in the proceeding.
Applicant adds hereto, Lawrence Cerf failed to dbject to the Oourt sen+ _
tencing in using the 30 year old conviction as the twopanxgqj£n.in the indict- ment. CR 0003. (see also, Glover v. U.S., 531 U.S. l98, 204(2001)) A Defendant in presenting evidence satisfactory whether counsel's performance was ineffec- tive under Strickland, a court must consider the totality of the circumstances
In Texas the effectiveness of counsel is ordinarily_guaged by totality of vthe ~representation, but a single error, is sufficient egregious, can con- stitute 'ineffective, assistance¢ See, Felton, Ex Parte, 815 S. W.2d 812(Tex. l Crim.App. 1981). Applicant filed aruxjon for new trial, alleges allegations identical to allegations alleged herein the application for writ of habeas n corpus. CR 02/27/10 OOl4O and 03/12/10 CR 00219 motion for New trial filed. Cerf abandoned. Applicant prior; to the filing of Motion for New trial and of a timely filing of "notice of appeal," when he knew Applicant wanted to-
file a notice of appeal. See, Roe- v. Flores-Ortega, 528 U.S. 470, 483~84
(2000).
Under the strong presumption that counsel's stragery and tactics fall "within the wide ranhge of reasonableness and professional assistance. In Smith v. Dretke,, 417 F.3d 488, 4412(5th Cir. 2005)(counsel's failure to in- troduce"certain evidence 'was unreasonable stratergy because he did so based on a.misapprehension of the law.)
Interpreting the 'prejudice».prong,_ the supreme-Court has identified a. narrow -category of cases, where Applicantls allegation fall neatly into the -category which prejudice_is presuimed; l
I-nv Cronic -v. U.S., 466 U.S. 648, 659(1984)(prejudice presumed where "counsel: action when> burdenedv by conflict of interest, or where there are various kinds of State interference with counsel's assistance.)Strickland( 466 q,S. at 692.>
However, it is the duty of the Cburt to inquire further to determine ' whether4 counsel's ineffectiveness "deprived[d]" the defendant of substances
or procedural right-to which the law entitles him.`
l.CLowzrszlEL, 5311LS.]EB, ZUZ(A(ZXD). In<;kmer, thedr>oxtnmy on‘jrmqnnzcesu§psusthmzaqramnm:ofadlsl }ml tmelEs:§xd1Amarhed:snyufnz¥ne"xi D1annvugan;dus
In concluding, similarly, in the context of a procedurally defaulted
appeal, cause by Counsel, a defendant can satify the prejudice prong by demonstrating that there is reasonable probability that, but for counsel deficient failure to consult the defendant about an appeal", defendant would have timely filed an appeal. See,.-Flores'-Ortega-', 528 U.S. at 480(2001). Lawrence Cerf, Attorney At Law, representing Applicant at trial abandoned Applicant just two days after the conviction.
' cmcLUsIoN
";I‘.he' foregoing reasons, Applicant Alex Melvin Wade, Jr., prays this Honorable Court set this matter for an evidentiary hearing on the unresolved issue as tol the denial»of effective assistance of counsel and upon the hea-r_ing',` Applicant allegat'ionSare found to be true. Issue its Order`re- commanding Applicant's.'Application for Wri_t of Habeas Corpus be in all things granted.
'.[here is no Order attached hereto because it has been the understanding
of the pro se litigant, in matters of this sort. Thida Honorable Court traditionally writes its own. Thus, the Rules r-» irement in this re-
gards asked be waived.
I Dr.. Alex Melvin wade, jr., has served a cop- /of this memorandum brief upon the office of the Honorabe Devon Anderso, District Attorney, harris
`/ County, Texas 1201 Fr-anklin Street, 6th Fl` , ; l Texas 77002, postage ‘. \ pre-paid to the attention of m _Smit ' ~ . 7 ______ ttorney, A.!( ;D,`<( ha Respectively. this done on this£ day ' ' '
Dr; Alex Melvin Wade, Jr. >aralegal Specailsit Mark W. Sti.`ies 3060 FM 3514 Beaumont, Texas 77705-7638 Cause No. : lDZBBS-D , " .A.`_'_`
Ex Parte Alex Melvin Wade, Jr., IN THE 185th JUDICIAL uIS’l RICT COURT Applicant, GF
`HARRIS_ COUN'I`Y`/ ’.[‘ E _X 21 S
'¢oowccaw¢
APPLICANT ALEX_ MELV]I\'I WA_DE, JR., 'S AMENDED D'IEE'!ORAMJUM IN SUPPORT OF THE UNRESOLVED CLAIM OF INEFFECI‘IVE ASSISJ.‘ANCE OF COUNSEL AND INSUFFICIENCY OFTHEEVIDENCEIN'IHEPRD'IARYCASE
MA!' 11 PLE;ASE THE COUR'J."-:
Ihis Court should reject the reasonable doubt instruction given to the jury because the instruction required submission of-a jury instruction on "reasonable doubt," in a.criminal case are not the instruction submitted to the jury in_this criminal proceeding.-('e Attachment,'Jury Instruction submitt eci to the jury in t?1is criminal case. )
A jury convicted Applicant of"attempted theft of over $2® 00 O. OL`)
This Applicant submit a copy oi: th\-_nstla-t_om .aubmitted to the jury and 'should find that the analytical construct dism ted the ::eaning of "proof beyond a reasonable doubt " and continued to improperly'imply that circumstan- tial and direct. evidence ¢ere 'inherently differentz As a result this Court _the135th Judicial District'Court,`Harris County, Texasy did not adopt the - definitional instruction on "reasonabla doubt" and with limited prospectivity required that the instruction be.submitted.to the`jury in all criminal casz;Q area in tn;.;bsence of Applicant objection ot-request by the State or the
defendant,-(Appl » abant contention is ‘1e was denieeJ effective assistance
of trial counsel, La
The-sufficiency of the evidence must be measured against the jury¢charge, Given the fact that a jury is to be guided by the charge in reaching their' verdict,.and given the fsct'that juries are no longer instruted on the law of circumsi :antial evidence; it no longer lakes sense for appellate Courts to u.ae the 11rcavsi1ntit§ evidence_"constrtctV to review the jurors acted "’aticnally."_($ee, attached note to the-Court, 00132) 'Fc d3 so evaluates the jurors‘ rationally by different standard than that by which they were
rinstructed to'reach their verdict. B.
'All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reason-s able doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged ,with, the offense gives rise to inference of guilt at trial.: The law does not require a defendant to prove his innocence or produce any evidence at all. The presumption of innocence alone is sufficient to acquit the defendant, unless the jurors are satisfied beyond a reasonable doubt of th§ defendant s guilt after careful and impartial consideration of all the evidence in the case. (See, Note for Judge, requesting the statement of Michael Coulter, which has been proven prejuried testimony)
II. Definitional Instruction on "Reasonable Doubt"
Whether this habeas court agrees or disagrees with the Hawkins v. State, 646 S.W.2d lQl(Tex.Cr.App. l983)(0pinion on rehearing). It was explained ` in Hawkins that discontinuances was justisfied by the reasoning and holding
-of Holland v. United States, 348 U.S. 12l, 75 S. Ct. l27, 99 L. Ed.;:lSO(l954) a tax evasion case involving the net worth method of proof. Hawkins, 646
_2_
S.W.2d at 197. In Holland, the Supreme Court held thatwhere the trial court charged the jury on the .elements of the offense, the presumtion of innocence, the government's burden of proof beyond a reasonable doubt(which included
a full definition of reasonable doubt), the length and nature of the net worth method of proof and the character of circumstantial evidence in general,
it was not necessary for the trial court to add to the charge that because .
the proof was circumstanial evidence, the Government must exclude every other , . . l .
reasonable hypothesis than the guilt of the defendant.
However, in re-examing the two Supreme Court cases which presaged Harwins- The Holland and Jackosn decisions - it is evident that both cases implicated* the requirement of a full definitional instruction to the jury on reasonable doubt as recognized by Judge Onion, Clinton, and Miller in their individual onionions in.the Hawkins case. See n.-4, supra at p. 5. As Judge Clinton” succinctly put it, "the accused is stripped of the benefit of a charge on circumstantial_evidence and then loses the protecti®n of a definition on reasonable doubt.” Hawkins, 646 S.W.2d at 219
In his dissent in Hawkims, Judge Miller suggested a charge on reasonable doubt in the terms spoken of in Bolland, "the kind of doubt that would make a person hesitate to act." ll.Hawkins, 646 S.W.ZS at 20l, n.3See, Geesa v. State, 820 S.W.2d 154KTengrim.App. l99l) at l62(J. Miller, concurring in 'part/ and dissenting in part). See Holland v. U.S., 348 U.S. at 140. The ' following defintional instruction on reasonable doubt combines the provision
of Section 2.01, V.T.C.A./ Penal Code, and instructions used in the federal'
system:
.(l)' All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that a person has been arrested, confined, or indicted for, or otherwise charged with, the offense 'gives rise to no inference of guilt at his trial.
_The law does not require a defendant to prove his innocence or produce any evidence 'at all. The presumption of innocence along is sufficient to acquit the defendant, unless the jurors are sat~ .isfied beyond a reasonable doubt .of the defendant's guilt after careful and impartial` consideration of all the evidence in the
case;j `(2) The-prosecution has the`burden of proving the defendant guilty and it must do so by proving each and every-element of the offense charged beyond a reasonable.doubt and if it fails to do sol you must.acquit the defendant. l
(3) It is not required that the prosecution prove quilt beyond vall possible doubt; it is required that the`prosecution's proof excludes_all Wreasonable doubt" concerning the defendant's guilt.
. (4) A "reasonable' doubt” .is a doubt based on reason and common sense after a careful and impartial consideration of all the vevidence in the case. 'It is the kind of doubt that would make a reasonable person hesitate to act in the nost important of his own affairs; ~ '
(5) Proof beyond a reasonable vdoubt, therefore, must be proof of such a convincing character that you would be willing to rely . and act' upon:it without _hesitation in the most important of your own affairs. - - _ y (§9>' In the event you have a reasonable doubt as to the defendant's \ guilt after considering all the evidence before you, and thce ins structions,-you will acquit him and say by.your verdict "Not Guilty" See, e.g., -l .E. Devitt & Blackmar, Federal Jury Practice_and in- structions.§,ll,l4; Pattern Jury Instruction - 5th Circuit United
Court of Appeals.l988; P. McClung, Jury Charges for Criminal Prac- v tice, at p. 6(1990) ' ’
Applicant expressly contends the Judge did not adopt this instructionl on "reasonable doubt" and contends that.this instruction Sh§uldéhave been
submiited to the jury in the criminal case, even-in the absence of an objec- tion or request by.the State or the Defendant!s trial Counsel, in this case, Lawrence Cerf, whether the evidence be circumstantial or direct. 820
S.W.2d 163 However, because the juryzwas not instructed in accordance with
_4_
the second part of Geese,\holding of that court, requiring a full definitional instruction on reasonable doubt, the habeas court should enter an order re- commending the writ of habeas corpus be in all things granted. C_oNcr.UsIoN WHEREFORE, Applicant Alex Melvin Wade, Jr., prays this Honorable court in the interest of justice issue an order recommending the writ of habeas'
corpus herein be granted, respectively.
Respectfully submitted,
Dr. Alex Melvin Wade, Jr., Paralegal Specailist
Mark W. Stilesl
3060 FM 3514 jBeaumont, Texas 77705~7638
CERTIFICATE OF SERVICE I, Dr. Alex Melvin Wade, Jr., pro se herein hereby certify a true and correct copy of the foregoing memorandum and its attachments has this _____day' of May 2015, been served upon the:Office of the Honorable Devon Andserson, District Attorney, Harris county) Texas-l20l Franklin Street, 6th Fl., c/o Andrew Smith, Assistant District Attorney, Harris County, Texas, Houston, _ Texas 77002, postage paid upon depositing of the same in the Prison' s mailbox,
. Mark W. Stiles Unit, 3060 FM 3514, Beaumont, Texas 7/705- 7638. 7 »
Dr. Alex Melvin Wade, Jr. Attorney of Record
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