Wade, Alex

• Court: Court of Criminal Appeals of Texas
• Decided: September 28, 2016
• Docket: WR-65,555-25
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NO. WR-65,555-25

EX PARTE ALEX WADE, Applicant

ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1222385-E IN THE 185th 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 attempted theft

between $100,000 and $200,000 and sentenced to forty-five years’ imprisonment. The First Court

of Appeals dismissed Applicant’s appeal for want of jurisdiction. Wade v. State, 01-10-00463-CR

(Tex. Crim. App.—Houston [1st Dist.] Sept. 23, 2010) (not designated for publication).

Applicant contends, inter alia, that his trial counsel rendered ineffective assistance because

he:

A. Failed to file a motion to dismiss the indictment; 2

B. Failed to file a motion to recuse and/or disqualify the trial judge;

C. Failed to file a “motion for acquittal” because the evidence was insufficient in this case;

D. Failed to request a jury instruction on a defense put forth at trial;

E. Failed to put forth available impeachment and exculpatory evidence for the defense;

F. Failed to call as a witness Attorney Jimmy Brown;

G. Failed to preserve error for direct appeal purposes;

H. Failed to introduce evidence of a civil suit filed by Applicant; and

I. Failed to call as a witness Attorney Byron Sims.

The trial court recommends we dismiss this application pursuant to TEX . CODE CRIM . PROC.

art. 11.07, § 4. However, while the Applicant has filed numerous prior habeas corpus applications

concerning this conviction, none of his previous applications attacked the underlying validity of this

conviction, or they were dismissed on other grounds. We have held the procedural bar of § 4 is

limited to instances in which the initial application raised claims regarding the validity of the

prosecution or the judgment. Ex parte Evans, 964 S.W.2d 643 (Tex. Crim. App. 1998). Because

we have not considered the validity of Applicant’s prosecution or judgment in any of his previous

applications, this application is not barred by art. 11.07, § 4.

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 3

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). In the

appropriate case, the trial court may rely on its personal recollection. Id.

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 shall

be obtained from this Court.

Filed: September 28, 2016 Do not publish