Wade, Samuel Hal

• Court: Court of Criminal Appeals of Texas
• Decided: October 21, 2020
• Docket: WR-91,817-02
• Status: Published

Opinion

IN THE COURT OF CRIMINAL APPEALS OF TEXAS NOS. WR-91,817-01 & -02

EX PARTE SAMUEL HAL WADE, Applicant

ON APPLICATIONS FOR WRITS OF HABEAS CORPUS CAUSE NOS. D-09-0411-SA-W-1 & D-09-0412-SA-W-1 IN THE 391ST DISTRICT COURT FROM TOM GREEN COUNTY

Per curiam.

ORDER

Under plea agreements, Applicant pleaded guilty to three counts of aggravated sexual assault

of a child and was placed on deferred-adjudication community supervision. The trial court later

revoked Applicant’s community supervision, found him guilty, and assessed three concurrent

sentences of sixty-five years in prison. The Third Court of Appeals affirmed the convictions. Wade

v. State, Nos. 03-17-00567-CR and 03-17-00568-CR (Tex. App.—Austin del. Apr. 17, 2018).

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 alleges that his guilty pleas for deferred-adjudication were coerced due to the

ineffective assistance of his plea counsel (Ground 4). Applicant maintains that he is innocent and that 2

the allegations were fabricated and encouraged by his ex-wife due to their divorce and child-custody

fights. He says one of his daughters never accused him, the other daughter recanted, and an

investigating officer did not “feel that [Applicant] was guilty.” He says that counsel pressured him

to take the plea bargains because Applicant could not afford to pay counsel’s $700-a-day trial fee,

and counsel told him he could not call expert witnesses to testify because Applicant could not afford

to retain them. Applicant complains that counsel never told him of the victim’s recantation or other

exculpatory evidence and failed to seek trial-court payment for an expert witness and trial fees. See

Ex parte Morrow, 952 S.W.2d 530 (Tex. Crim. App. 1997); Ex parte Briggs, 187 S.W.3d 458 (Tex.

Crim. App. 2005). Applicant attaches his ex-wife’s statement to police and a psychologist report in

support of his claims, and he says that “he had no options but to plea out the charges, which he

would not have done had he known of the other options available to him.” See Hill v. Lockhart, 474

U.S. 52 (1985). There is no response from plea counsel in the habeas record.

Applicant alleges that he was denied counsel when the probation department coerced him

into agreeing to a modification of the terms of his probation without allowing him to consult with

an attorney (Ground 1) and that counsel never challenged the coerced modification, which extended

the deferred-adjudication period (Ground 2). There is no response from revocation counsel. The trial

court finds that there was no motion to revoke filed in connection with the modification, so

Applicant was not entitled to counsel. Nonetheless, the issue of voluntariness to agree to a

modification may have been an issue relevant at revocation, i.e., whether the probation period was

validly extended. There is no response from revocation counsel in the habeas record.

At the conclusion of the two-day revocation hearing, the trial court found six of the State’s

motion to revoke allegations to be true—an incident of alcohol use, going to Dallas County on an 3

occasion without permission, going to Gillespie County on an occasion without permission, missing

curfew those two times while out of the county, and attending a funeral where children were present.

Applicant alleges that revocation counsel failed to properly investigate to discover the facts and

mount a defense that adequately addressed the motion-to-revoke allegations. He alleges that counsel

failed to call, and declined a continuance to obtain, the sex-offender classroom administrator, Emily

Orozco, although counsel characterized her as a “central character” who was a “material witness”

that counsel believed may have intimidated other witnesses and may have evaded process (Ground

3). Rather, according to Applicant, revocation counsel “presented 12 witnesses of which only 6 were

there to testify ‘on topic’ that being issues regarding the Applicant and him violating the terms and

conditions of probation. [Revocation counsel] focus[ed] on a personal vendetta against the Concho

Valley probation department and the sex offender treatment program run by Ms. Orozco.” There is

no response from revocation counsel.

Applicant has alleged facts that, if true, might entitle him to relief. 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 plea and revocation counsel to respond to

Applicant’s claims of ineffective assistance and coercion. 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 resolving the controverted 4

factual issues. The trial court may make any other findings and conclusions that it deems appropriate.

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: October 21, 2020 Do not publish