' duties of the district clerk, one can conclude that the fac» l

L,o§ ,`S`S`. '/ ZLJ

Dr. Alex Melvinvwade, Jr.

Paralegal §peeialist k RECE\VED \N
bél(a)§§ §M §§Ees COURT CF CR|M\NAL APPEALS

Beaumont, Texas.77105-7638
Cause No.: WR-65,555-24 _ DE[; 28 2015

1N THE TEXAS COURT OF CRIMINAL APPEALS
STATE OF TEXAS '

Ex Parte Ale'x Me1vin wade, Jr..Abel Acosta, C|erk
_ Applicant.>

 

PETITION FOR WRIT OF HABEAS CORPUS
CAUSE N0.1222385-D,F1LED 1N THE 185th DISTR1C1 COURT
HARRIS  COUNTY

APPLI€ANT ALEX MEEVIN WADE JR., FILES HIS RESPONSE

COURT S F1ND1NG OF FACTS) AND C@NCLUSION OF LAW FILED

WITH AN AITACHED ORDER ON 11/11/2015 AND TRANSMITTED
~TO THIS CDURT AND FILED ON 12/08/201590

10 THE HONORABLE JUST1CES OF SA1D COUR1
COMES NOW A1ex Melvin Wade, Jr. , pro se, files the above entitled cause of

action in this Court where jurisdiction of_ the same based on the attached docu-
ment is brought pursuant to Texas Rules of Appellate Procedure 73. 3(3)(2) and

for good cause as in  the following:
1

On small change that was and is provided in Rule 73. 3, is both parties

are now given 10 days from the date they receive the trial court' s findings

of fact and conclusion of law th .file objections.

Applicant While confined at Mark W Stiles received a copy of the Court' s
finding of fact and conclusions of law with an attached order on 11/17/2015.
This Applicant filed his Response that contain objections to the Court' s Findings
of Fact and Conclusion on 11/17/2015. (Deposted mm the Prison' S Mailbox On
11/17/2015) Therefore, the timely filing of the objection and response(See
Attachment) was filed within 10 days of the court' s action. Applicant' s conduct
in the filing is to not avoid any delay of the proceedings. And though the rule

does not specifically state it, the objections are to be filed with the kr‘il
~. t the 10 days

y with the CCA.

   
 

objections are to be filed with the trial court and not
Applicant has not been notified this Court received '
that contained the objection to the court]s\action yf' ’

Applicant herein attaches a copy of the pleading ,3
of the record in the above entitled cause of act f

  
 
 
 
  

_ _,,,.

cc : -
Chris Daniel, Clerk
.Devon Anderson, DA

wl 1222385-1)

EX PARTE § " " ` 1111 'IHE 185th DISTRIcr coURT
§ 0F `
ALEX 1111le wADE, JR. , ’ § HARRIS €anN'IY, T E X A s
Applicant. '

APPLICANT' S PRGPOSED FINDINGS OF FACT,
CONCLUSIONS- OF LAW AND ORDER '

n This Court has considered the original and amended applications for writ

of habeas corpus, this is not limited'to the State's Motion Requesting Designa-
tion of Issue and State’S'Proposed Order Designating'lssue signed by this
Court on March 12t , 2014; some 19 months ago..Consideration is herein given

to Applicant's voluminous filing with evidence attached'thereto;.the newly
discovered evidence supporting his claim of prosecution' S Suppression of evidence
§@VOrable to the accused, where Brady violation appears to have been committed
by the proseanjon Applicant has presented evidence showing and supporting his

. trial attorneyiLawren@ev Cerf, ineffective at critical_stages of the proceedings.
Ihe Court found there are_controverted, previously unsolved.facts material to_

4 the legality of the-Applicant!s confinement, where Applicant writs alleges the
claim of "actual innocence,"which require an evidentiary hearing.

The Coprt recommends the habeas claims alleged be determined in a evidentiary
hearing, Applicant habeas allegations, supported by evidence§-are sufficient to:
overcome the State's Original Answer dated Nov; 5th,-2015, filed by the Office
of Devon Anderson, District;Attorney; by Farnaz Faiaz, Assistant District_
Attorney. The State's Answer do not address the “State's Request for Designsv

ation of Issue.filed by Andrew Smith; Assistant District Attorney on March lith;§.

 

 

Applicant has presented to the habeas corpus court a copy of the`Clerk's
Record in 1222385, prepared by Salinas on June 18th, 2010 to the Court of
Appeals. In that Recopd Applicant claim of actual innocence is clear, that
is to say, there is no complainant, CR- 00004` the complaint used by the State
to acquire the indictment is a complaint that was dismissed against Applicant
in cause number 1116862. The Clerk' s Record is saunzmed l with record if
not the entire record from the dismissed indictment 1116862 Further applicant
has presented\lthe Statement of Facts, which is part of the Clerk' s Record
where the State' s Chief Witmess, Eitan Price, CR- 00328, testified that there
was no complaint filed as alleged in the indictment that it is Western World
Insurance Gropp that is the complainant. Therefope, the State failed to meet
its burden, that is it fail to prove the name alleged in the indictment that
is Western World Insurance Group was the complainant. CR-OOOOZ

Further Applicant list a line of filing the District Attorney's Office
has not acknowledged as part of the record.

`_1. Under cover letter dated February 14th, 2014 a list of documents sub-
mitted to the Clerk’s Office to be filed and copy sent to the Office of Devon_
Anderson, among those documents, Exhibit "A" thru "S", in the Clerkls_.

Record 00036-00054,4Affidavityof Ken CasH, of Capital One labeled Capital One

Exhibit ”A, " Capital One, Exhibit "A3 ,", Exhibit "A$,", Applicant Exhibit "Z"

a copy of the contract entered between Applicant and Capital One, attached

thereto, Applicant Exhibit Z1, the copy of the actual deposit slip and Exhibit

"Z2" a copy of the draft deposited with Capital One to be sent for collection.
(A) The evidence was suppressed by the State regarding Capital One, which

1. TheStateSQ:'lgmalArwerdomtnentlmiieStatesb/btiontoD§JgrnteIssue
aniPansaiOnkrlx§ugatugfksuefikzionpani111dr ZHA.

_2_

 

is exculpatory and &np@gjngnt evidence used pnqxg¢y' by trial counsel, Lawrence

Cerf, would have shown the State'S Chief Witness, Michael Coulter'S testmony
was prejuried testimony and the State's.Exhibit "@," was a false copy of the
deposit slip which was made by the Bank to make it appear there was no actual.
deposit made by Applicant. This evidence will show that used properly and
presented before a jury, a fact finder would not have found this Applicant
guilty of attempted theft.

2, Applicant presented under cover letter date February 14th, 2014, a
memorandum brief in support of the writ application.. The.Court of Appeals
without review of that evidence would be a blanant denial of due process of .
law regarding the claim of prosecutional misconduct, knowing use of false
evidence and allowing it go uncorrected denied due process of law. Prosé¢utional
vikUQWiDgly US€d¢e altered tesdimony and false testimony denying applicant
a fair and impartial trial.

3. 'State makes no mention of the Motion filed by Andrew Smith, Assistant
District Attorney§ "Motion Designating lssues," filed on March 12th, 2014
which the Order Designating lssues should have been transmitted to the Court
of Criminal Appeals.. The State Mniginal Answer make no mention to the Order
Designating lssues prepared and submitted by Andrew Smith Assistant District
' Attorney and signed by the Honorable Susan Brown, Presiding, 185th Judicial
District Court of Harris County.

4. Original Memorandum Brief under_cover letter dated April 16th, 2014
specifically addressing the unresolved claim of Applicant; Whether Applicant
is actually innocence of the primary case. The cover letter is addressed to
Leslie Hernandez, Deputy.- ` l v

_ _3_

5. Applicant filed with the Office of Chris Daniel, Clerk under cover
letter dated MarchlestthOl@, His amended Application for writ of habeas corpus
with the attached Exhibit "E" & "F", which shodld as a matter of fundamental
due process of law be revbewed by the Court of Appeal as to the Unresolved lssues
Acknowledge by the State'. Under cover letter dated March 26th, 2014 a proposed
drafted Order to grant the amended writ application presented under cover
letter dated March 21st, 2014.

6; Applicant sumbitted under cover letter dated March 3lst, 2014; his
Original Motion to Recuse and/or Dnsqualify Judge Susan Brown, with.Declaration,

and memorandum brief in support which should be made part of the record to be

presented to the Court of Appeals.
7. ` Applicant submitted under cover letter.dated April 3rd,_2014,.Applicant

Alex Melvin Wade, Jr., Memorandum Brief In Support.unresolved issue, whether the
State committed a Brady violation in the primary case.
k 8. Applicant submittedkunder cover letter dated August'4th, 2014, Applicant's
_Proposed Order for Show Cause and Evidentiarvaearing n l

9. Applicant sumbitted under cover letter dated August 26th, 2014 a list
of Exhibits`to be-.made a part of the habeas -record, Exhibits U, 4T'&.v_-,;_1.“>_<hibit
"U"; Applt¢ant's Exhibit'Z, Z1 & 225 The Jury'Notes from the Clerk's Record,
etc. _ '

10 Applicant submitted Alex Melvin.Wadei Jr., memorandum brief in support
`of the denial of effective assistance of counsel, ¢and an amended memorandum
in support of the denial ofgefféctive ass_istancetofi counsel in the primary case.

1 11.:Applicant writ of habeas record should contain-among the above the

' /

1. Applicant A]estlvin _Wade, Jr.,'s memrerrl).mlx'jef on unresoled issuswnethsr the
Applicant received ireffective _assistarr:e of coursel in the primary case. filed on "
or abth May 18th, 2015
2. Applicant A]ex Mslvin \'/Jeds, _Jr`., Petitim and A;p]_icatim for Rslease on Personal
Recogritems Bord and/or Settirg of Resonable Suiety Bai_l perrlirg finality of State:?'s
Writ of Habees Corp.ls. Certificate of Servics dates 06/18/15' . ‘ -~
3. AWlicant Alex Ms.lvin Wade, Jr.,'s Ansndsd Msrorarrimin Support of the Unresolved
claim ofi:`ineffectivs assistance of counsel ard sufficiemy.of the evidsme in fns , .
. primary aase, with Jury irst:m:tim attacked (R-(X)122-(D124 and Jury'_s mts CR-(X§€LBZ
`4. Agohmtmdm?hiefmsipomofgrmtofmbeasmrpsbeilpadngfne]iw
ofrevievlytl'eCan:tofCrindnal_AgJeels. - " `. - '
5. Applicant's nsmrandLrn'-in sliport of unresolved issue # five(§), whether the State
allowed sz:jLn:ied_'ex/iderr:s and false testinnny `in the prmsiycase. [htd'tmdq'M,).
2014 ’ 1 _ - f b '
6. Applicant's I\’Br_nrarrimBrie£ regarding Sl.lppression of"'inpsa:`hrmt evidence by prosecu-
tim`autl'r)ritim that was favorable to applicant Cer.tificats undated '
7. Applicant's_Al@< Melvin Wa_de, Jr., nemra`rrlm brief crm-unresolved issue whether the
State committed a.Brady'violat:ion in the primary case. . ']l'\me pleadirg reference the
Clerk's Record in stpQrt of':'fns amursnt. Dated Aprj_l_.3rd, 2014.] .

AH)licant's list go on ard on, blt the State fails to acknowledge the above filing
that should and must be presented to the Court' of Crimina’l"Appeals in the
Writ Application review_.'. T_o not prepare a correct habeas record for presenta~

tion to the Court of Appeals would `be nothirg_ less than deny him his due .pro-

cess of law.
LEGAL ARGU»mNT”oN.`IS`SUE»oF ACI'UAL INNOCENCE THAT ENTinE`HIM 110 '
_AN tvanvale HEARING 0N THEcLAm;oF"ACIUAL .INNOCE:NCE sUPPORTED_ t

inv light of-~McQuiggin.v.- -Perkips,- -133 s.ct. 1924(2013)(citing`schlup

k pel_<§; 51~3~`1)_.'$..298(1995) provide the founda_tion`that -an applicant mus£
meet to support.his actual innocence claim. Applicant allegation has hurdled
_E§ Par_te -R`i:ch`a'r`dso§ , 70 'S.W$d" 865_,' 870(Tex.Crim.- App. ‘2002); See also .E_x_ Par_t l
'. £ams_, 768_ S.W.2d 28'1`(Tex."Criminal-Ap'p'.- 1988)', Applicant's evidence presented
4 ' in the writ filing of Appl-icant, State's"-knowingly‘used false evidence and

_ the State suppressed evidence"favorable,' which irs exculpatory'.and impeachment

eviidence. The suppressed evidencs, the state knew existed andaello&@ it to

go uncorrected_.

_5_

V

Applicant's evidence establising an insufficiency-of-the-evidence standard
equivalent to that of Jackson vi Virgina, 443 U.S. 307(1979), the logic of
presentation of the evidencs, newly discovered and suppressed evidence is
toomake clear, the Applicant evidence, if presented to the jury and used properly

would have established that a fact finder would not have found this applicant

guilty of attempted theft.

However, the Clerk' S Record, which is part of the habeas record and the
same should be made part, contain no complaint by Western World Insurancs Group
and that along that state did not meet it burden of showing the essential
element of the indictment, that is Western World Insurance Group was the
 Complainant (SequOOOOZ, against QR 00004 and CR. 00328, ln 13-24).

Applicant elideme and the Clerk's Record do maks'a“ colorable Shmir'g of-innocence "by
showing that he might not, orteven would not, have been convicted in the
absence of evidence claimedgto-have been unconstitutionally suppressed by the
state-and applicanttdenial of the effective assistance of counsel at a critical
stage of the proceedings.j Rather, as Applicant evidence-hasfshown "fair. w
probability`that§.in light of all the evidence, including that alleged to have
been false, perjuried testimony(but due-regardsto any unreliability of it) and
evidence tenably claimed to have been wrongfully excinded'or to have become 1
available only after the trial, the trier of the facts would have entertained
a reasonable doubt of his guitt." _

The Supreme Court has held that defendants must meet an "extraordinary
hig " standard and threshold showing of innocence before habeas proceedings
will be appropriate.nHerrera v;;Collins3_506 U;S. 390(1993) see also, §§hl§p
yi_§§lgl_§gp:a; Applicant can bring claims based on newly discovered evidence

_6_

 

under habeas corpus division. State §§ rel. Holmes v;_Third Court §§ Appeals,
885 S.W. 2d 389, 397-99(Tex.€rim;App. 1994), overruling Ex Parte Binder, 660 S.
W; 2d 103(Tsx.€rim.App.1983); An Applicant as this Applicant seeking habeas
relief based on a claim of "factual innocence," must, as a threshold demonstrate
that the evidence, if creates, a doubt.as to the efficacy of the verdict suf-
ficienly to undermine confidenceein the verdict and that it is possible that

the verdict would be different. Be it noted, Exhibit "A" thur "S", (CR¥00035556)
was never presented before the jury nor was the exhibits properly made a part of`
`the record, once the threshold has been met, the habeas'court,iwhich is this
Court must afford this applicant a forum and an opportunity to present his
evidence. Holmesi 885 S.W.Zd at 397. Applicant has made his prima facie show~
ing, which is with clear and convincing evidence the Court of Appeals is en-
-titled to review in the habeas record that appears to being put into place to

v forward to the Court of Criminal Appeals. However, State’s'Original Answer

do not make reference to the State's Motion to Designate Issueeand State's
Proposed Order to Designate lssue, filed on March 11;& 12, 2014, that must

_'be made a part of the rscord..(See, Exhibit "A" 1 thur 4, attached hereto)

'It appears; since:the State is attempting to cause the record be incomplets,
thereby,»in short hiding from the Court of Appeals a complete.record, it is
nothing?iless=that as it has.dons in the Clerk's Record, 1222385, in the 185th
Judicial District Court, Harris County, Texas manipulated-knowing the record
should show in it entirty.

lt is for the above reasons, this Applicant strenously object and respond
to State's Originalznnswer of November 5th;-2015, respectively. v

State's initial Motion to Designate Issue has been granted and the same
has not to this day been responded to by the State in this mattert

_7_

`CONCLUSION
For the foregoing'reasons, Applicant Alex Melvin Wade, Jr. ,prays this
Honorable Court overrule State' s Original Answer filed November Sth, 2015
some one and a half year after the Court Order Designating lssue was signed
and presented to the Office of Harris County, Texas District Attorney, Devon
Anderson, District Attorney.
lFurther, if this Court deem that it should grant State's Original Answer,
Applicant Alex Melvin Wade, Jr., prays this Honorable Court issue it order
directing the Office of Chris Daniel; Clerk of the Harris.County District
-,Courts forward the complete habeas record,.which contain the list of pleadings
and exhibits to the Court of Criminal Appeals»nmtnanedherein.
4 There is no Order attached hereto because it has been the understanding
:of the undersigned that in matters of this'sort. This Honorable Court tradi¥
tionally writes its own. Thus, the rule requirement asked be waived.
,Respectfully submitted,

Dr. Alex Mi¢:slvin Wade, Jr.
Attorney o Record

Mark W. Stiles
3060 FM 3514 .
Beaumont, Tsxas 77705-7638

cERTIFICATE § SERVICE;

l, Dr.,jAlex Melvin.Wade_, Jr., pro se herein'hereby cer' 'a true and _
correct copy of the foregoing Objection has'this November:" ' '~ ’, 2015 been
served upon the Offics of the Honorable Devon' Andserson,'_ llstrict Attorney
harris `County,, Texas at 1201" Franklin Strset, Sts 6th"fl., 'Hous`ton, Texas
77002', postage'~.pre paid and deposited in the prison's'mailbox on _,and at
Mark W. Stiles Unit, 3060 FM..3514, Beaumont, .Texas 77705~7638.

  

Dr. Alex Melvin Wade, Jr.
Attorney of Record

 

