The 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;
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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
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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