             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-86,371-08


                      EX PARTE JASON WAYNE MCBRIDE, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. CR2016-008-3 IN THE 207TH DISTRICT COURT
                             FROM COMAL 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 charged by indictment with

one count of continuous violence against the family, two counts of assault with family violence, one

count of aggravated assault with a deadly weapon, one count of repeated violation of bond

conditions, and one count of evading arrest or detention with a previous conviction for that offense.

A jury found Applicant guilty of five of the counts, and not guilty of one of the assault with family

violence counts. The trial court found an enhancement paragraph to be true and sentenced Applicant

to twenty years’ imprisonment for the continuous violence against the family count, the assault with
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family violence count, and the repeated violation of bond conditions count, forty years’

imprisonment for the aggravated assault with a deadly weapon count, and ten years for the evading

arrest or detention count, all running concurrently. The First Court of Appeals affirmed his

conviction. McBride v. State, No. 01-17-00528-CR (Tex. App. — Houston [1st Dist.] May 24,

2018) (not designated for publication).

       Applicant contends, among other things,1 that his trial counsel rendered ineffective assistance

for various reasons. Applicant alleges that trial counsel never met with him before trial, never

communicated any plea offers to him, never reviewed discovery with him, did not allow Applicant

to testify on his own behalf, did not present any defense or submit any evidence, and failed to object

or file a motion for new trial on the basis of double jeopardy. On direct appeal, Applicant alleged

that he had been improperly subjected to double jeopardy because acts alleged in the continuous

violence against the family count were also alleged as the basis for the assault with family violence

and aggravated assault counts. The court of appeals rejected this claim, noting that it had not been

preserved by contemporaneous objection and was not apparent from the face of the record.

Applicant now alleges that trial counsel was ineffective for failing to object and preserve this issue.

       The record indicates that the charge submitted to the jury was different from the allegations

in the indictment. During the charge conference, the State indicated that it was abandoning the

language in the continuous violence against the family count that alleged the same acts upon which

the assault with family violence and aggravated assault counts relied. Trial counsel indicated that

he had no objection to these changes. Therefore, the charge as submitted to the jury did not raise

double jeopardy issues. However, it is not clear why trial counsel did not object to the changes to


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           This Court has considered Applicant’s other claims and finds them to be without merit.
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the jury charge.

       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

shall order trial counsel to respond to Applicant’s claims 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 must

be requested by the trial court and shall be obtained from this Court.
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Filed: September 11, 2019
Do not publish
