Jacque Shelton v. State Texas State

Jacque Shelton appeals his conviction for the sexual assault of a minor, contending his attorney denied him effective assistance
of counsel by failing to call as a witness at his second trial an alibi witness who testified at his earlier trial. The State
has not filed a brief in this appeal; accordingly, we have accepted as correct the unchallenged statements of fact contained
in Shelton's brief. See TEX. R. APP. P. 74(f). Because we find the failure to call the witness denied Shelton effective assistance
of counsel, we sustain his point of error, reverse the judgment, and remand the case for new trial. Shelton was first convicted of this offense following a jury trial in Wise County. In an unpublished opinion this court reversed
that conviction holding the trial court erred in denying his uncontroverted motion for change of venue. Shelton was represented
by the same attorney in both trials. The only evidence supporting the State's case against Shelton was the testimony of the
complainant who had been sixteen at the time of the alleged offense. Shelton's attorney called Shelton's great-niece, Shonya
Engel, as a witness at the first trial but did not recall her at the second trial. Engel's testimony, at the first trial,
so completely contradicted that of the complainant that it would have been impossible for the jury to have believed both witnesses.
The complainant testified he and Shelton had slept together, in Shelton's bedroom, the entire night of the offense; however,
Engel testified she had spent that night at Shelton's home and he had been away the entire night. Engel also testified she
heard the complainant's mother attempt to extort money or land from Shelton, by threatening to accuse him of child molestation
if he did not give in to her threat. Engel's affidavit, included in the record by agreement, establishes she was available
to testify at the second trial, but Shelton's attorney never contacted her.