             IN THE COURT OF CRIMINAL APPEALS
                         OF TEXAS
                                         NO. WR-84,593-01


                    EX PARTE CHARLES WAYNE WARDEN, Applicant


                 ON APPLICATION FOR A WRIT OF HABEAS CORPUS
               CAUSE NO. 07-CR-2122-B IN THE 138TH DISTRICT COURT
                            FROM CAMERON 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 one count of

murder and one count of aggravated assault, and sentenced to sixty-five and fifteen years’

imprisonment, respectively. The Thirteenth Court of Appeals affirmed his conviction. Warden v.

State, No. 13-09-00116-CR (Tex. App.— Corpus Christi–Edinburg Sept. 16, 2010)(not designated

for publication).

        Applicant contends that his trial counsel rendered ineffective assistance because counsel (1)

failed to enhance the dash camera video of the offense from the patrol vehicle, (2) failed to locate,
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interview, subpoena, and call three eyewitness who had observed the confrontation, (3) failed to call

Officer Isidro Calvillo, who observed the confrontation, (4) incorrectly focused on the insanity

defense, (5) failed to focus on a defensive strategy of self-defense from multiple assailants, and, (6)

failed to raise a timely objection to the State’s expert.

        Applicant also contends that appellate counsel rendered ineffective assistance for failing to

raise the fact that the charge on self-defense should have been granted based on the fact that

Applicant had been subjected to multiple attacks by multiple assailants, and for failing to attack the

trial court’s ruling that self-defense and the defense of insanity were mutually exclusive.

        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 claim of ineffective assistance of counsel. The

trial court shall also order appellate 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).

        It appears that Applicant is represented by counsel. The trial court shall determine whether

Applicant is represented by counsel, and if not, 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 findings of fact and conclusions
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of law as to whether the performance of Applicant’s appellate 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: April 20, 2016
Do not publish
