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