Schulte, Gary Wayne ( 2013 )

IN THE COURT OF CRIMINAL APPEALS OF TEXAS

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NO. WR-80,299-01

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EX PARTE GARY WAYNE SCHULTE, Applicant

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ON APPLICATION FOR A WRIT OF HABEAS CORPUS CAUSE NO. 1181066-A IN THE 337TH DISTRICT COURT FROM HARRIS COUNTY

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Per curiam.   O R D E R

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 theft and sentenced to imprisonment for life. The First Court of Appeals affirmed his conviction. Schulte v. State, No. 01-10-00100-CR (Tex. App.--Houston [1st Dist.] 2012, no pet.).

Applicant contends that trial counsel failed to: (1) investigate and object to the pre-sentence investigation report (PSI); (2) file a motion for new trial after the PSI was admitted; and (3) object and file a motion for new trial after the trial court ruled that mitigation evidence was inadmissible. The trial court adopted the State's proposed findings of fact and conclusions of law and recommended that we deny this application. We decline to adopt these findings and conclusions.

They are, in fact, largely legal conclusions and principles derived from decisions from this Court and the United States Supreme Court, and they often misrepresent Applicant's pleadings. The trial court found, for example, that Applicant's complaints were conclusory and that he merely stated that his counsel failed to investigate his case. Legal conclusions are not a substitute for factual findings. This Court has independently reviewed the record. We conclude that Applicant has not established prejudice under Strickland v. Washington, 466 U.S. 668 (1984), but not because his complaints are conclusory. This application is denied.

Filed: October 23, 2013

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