## I N T H E C O U R T O F C R I M I N A L A P P E A L S O F T E X A S NOS. WR-91,817-01 & - 02

EX P ARTE SAMUEL HAL WADE, App licant

ON AP P LICATIONS FOR WRITS OF HABEAS CORP US CAUSE NOS. D-09-0411-SA-W- 1 & D-09- 0412-SA-W-1 IN THE 391S T DIST RICT COURT F ROM TOM G REEN COUNTY

Per curiam . O R D E R Under plea ag ree ments, Applicant pleade d g uilty to three counts of ag g ravated sexual assault of a child and was place d o n defe rre d-adjudication community supervision. The trial court later revoke d Applicant’s community supervision, found him g uilty , and assessed three concur rent sentenc es of six ty -five y ear s in prison. The Third Court of Appea ls aff irmed the convictions. W

ade

v. State , Nos. 03-17-00567- CR and 03-17-00568- CR (Tex. App.—Austin del. Apr. 17, 2018). Appl icant filed these applications for writs of habea s corpus in the county of convict i o n , an d t h e district clerk f

orwa rded the m to this Court. See T E X . C O D E C R I M . P R O C . art. 11.07. Applicant alleg es that his g uilty pleas for defe rre d-adjudication wer e coer ced due to the ineffe ctive assistance of his plea counsel (Ground 4). Applicant maintains that he is innocent and that2

the alleg ations wer e fabr icated and encour ag ed by his ex-wife due to their divorce and child-custody fig hts. He say s one o f h i s d aughter s never acc used him, the other daug hter rec anted, and an investigating office r did not “fe el that [Appli cant] was g uilty .” He say s that counsel pressure d him to take the plea

barg ains bec ause A

pplicant could not af

ford to pay

counsel’s $700- a-da

y trial fee , and counsel told him he could not call expert witnesses to testify beca use Applicant could not aff ord to reta in them. Applicant complains that counsel never told him of the victim’s rec antation or other exculpatory evidenc e and failed to seek trial-cour t pay ment for an expert witness and trial fee s. 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 attache s his ex-wife’s statement to police and a psy cholog ist repor t in support of his claims, and he say s that “he had no options but to plea out the char g es , 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). The re is no re sponse from plea counsel in the ha

beas r ecor d. Applicant alleg es that he was denied counsel when the probation depar tment coer ced him into ag ree ing to a

modification of t he terms of his probation without allowing him to consult wit h

an attorney (Ground 1) and that counsel never challeng ed the coer ced modification, which extended the defe rre d-adjudication period (Ground 2). There is no response from revoc ation counsel. The trial court finds that there was no motion to revoke fi led in connec tion with the modification, so Appli ca n t was not entitled to counsel. Nonethele ss, the issue of voluntariness to ag ree to a modification may have been an issue rele vant at revoc ation, i.e., whether the probation period was validly extended. There is no response f rom revoc ation counsel in the ha beas r ecor d. At the conclusion of the two-day revoc ation hear ing, the trial court found six of the State’s motion to revoke alleg ations to be true—an i ncident of alcohol use, g oing to Dallas Count y on an3

occa sion without permission, g oing to Gillespie County on an occa sion without permission, missing curf ew those two times while out of the county , and attending a funer al wher e children wer e prese nt. Applicant alleg es that rev o ca t i o n counsel failed to proper ly investiga te to discover the fac ts and mount a defe nse that adequa tely addre ssed the motion-to-revoke alleg ations. He alleg es that counsel failed to call, and declined a continuance to obtain, the sex-offende r classroom administrator, Emily Orozco, althoug h counsel chara cter ized her as a “centra l char acte r” who was a “ materia l witness” that counsel believed may have intimi dated other witnesses and may have evade d proce ss (Ground 3). Rather, acc ording to Applicant, revoc ation counsel “pre sented 12 witnesses of which only 6 wer e there to testify ‘on topic’ that being issues reg arding the Applicant and him violating the terms and conditions of probation. [R evocation counsel] focus[ed] on a persona l vendetta ag ainst the Concho Valley probation depar

tment and the sex offe nder trea tment prog ram run by Ms. Orozco.” There is no response from re vocation counse l. Applicant has alleg ed fac ts that, if true, might entitle him to relief

. Acc ording ly , the rec ord should be develope d. The trial court is the appropr iate forum for finding s of fac t. T E X . C O D E C R I M . P R O C . art. 11.07, § 3 (d ). The trial court shall order plea and revoc ation counsel to respond to Applicant’s claims of i neff ective assistance and coercion. I n developing the record, the trial court may use any means set out in Article 11.07, § 3(d). I f the trial court elec ts to hold a hear ing, it shall d eter mine whether Applicant is indige nt. I f Applicant is indige nt and wants to be repr esented b y counsel, the trial court shall appoint counsel to repr esent him at the hear ing. See T E X . C O D E C R I M . P R O C . art. 26.04. I f counsel is appoin t ed o r re t ained, the trial court shall immediately notify this Court of counsel’ s name. The trial court shall make finding s of fac t and conclusions of law resolving the controve rted4

fac tual issues. The trial court may make any other finding s and conclusions that it deems appropr iate. The trial court shall make findings of fa ct and conclusions of l aw within ninety day s from the date of this order

. The district cler k shall then immediately forwa rd to this Court the trial court’s finding s and conclusions and the rec ord develope d on rema nd, including, among other things, aff idavits, motions, objections, proposed finding s and con clusions, order s, and transcr ipts from hear ings and depositions. See T E X . R. A P P . P. 73.4(b)( 4). Any extensions of time must be reque sted by the trial cour

t and obtained f

rom this Court.

Filed: October

21, 2020 Do not publish