Order issued October 23, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-14-00659-CR
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JASON CLIFFORD CONWAY, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1424502
MEMORANDUM ORDER
Appellant, Jason Clifford Conway, has filed a “Motion to Abate Appeal and
Remand for Hearing on Motion for New Trial and For Permission to File Out of
Time Motion for New Trial,” arguing that he was deprived of counsel during the
30-day period for filing a motion for new trial, that the deprivation of counsel
caused him harm, and that the case should therefore be abated to the trial court so
that he can file a motion for new trial. We grant the motion and remand the case
for additional proceedings.
The time for filing a motion for new trial is a critical stage of the
proceedings in a criminal case, and a defendant has a constitutional right to counsel
during that period. See Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App.
2007). There is, however, a rebuttable presumption, in cases where a defendant is
represented by counsel during trial, that counsel continued to adequately represent
the defendant during this critical stage. Id. Further, “[e]ven when a defendant can
rebut this presumption with evidence that he was deprived of adequate counsel
during this critical stage, this deprivation of counsel is subject to a harmless error
or prejudice analysis.” Id. But, if the appellant asserts on appeal a “facially
plausible claim” that could have been alleged in a motion for new trial, the
deprivation of counsel is not harmless beyond a reasonable doubt. See Rogers v.
State, No. 14-09-00665-CR, 2011 WL 7290492, at *3 (Tex. App.—Houston [14th
Dist.] Feb. 8, 2011, no pet.); Bearman v. State, 425 S.W.3d 328, 331 (Tex. App.—
Houston [1st Dist.] 2010, no pet.).
Here, Conway pleaded guilty to the felony offense of assault with dating
violence on April 30, 2014. See TEX. PENAL CODE ANN. § 22.01(a)(1), (b)(2)
(West Supp. 2014). The trial court held a presentence investigation hearing on
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July 24, 2014, after which the trial court sentenced Conway to 10 years’
imprisonment.
On July 27, 2014, Conway filed a pro se notice of appeal. On August 14,
2014—eleven days before the deadline for filing a motion for new trial—Conway
filed a pauper’s oath on appeal and the trial court appointed appellate counsel,
Maite Sample, to represent him on appeal. See TEX. R. APP. P. 21.4.
Conway filed his motion to abate on September 10, 2014. In his motion,
Conway argues that his appellate counsel, once appointed, attempted to obtain the
appellate record from the trial court clerk, but was unable to do so because the
record was “in ‘imaging’ with the clerk’s office.” Conway further argues that
“there was inadequate time for Appellant and [appointed counsel] to review
potential issues for presentation in a motion for new trial” after counsel was
appointed. Conway has therefore rebutted the presumption that he was adequately
represented and has demonstrated that he was deprived of counsel during the 30-
day time period for filing a motion for new trial. See Cooks v. State, 240 S.W.3d
906, 911 (Tex. Crim. App. 2007).
Conway further argues in his motion that his plea was involuntary, because
“his trial counsel gave him incorrect information about the procedure in a PSIH in
order to convince him to plead guilty,” “his trial counsel withheld information
about the availability of a State’s witness that he believed was of great
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importance,” and “he felt pressured and coerced by his trial counsel as well as the
trial court to plead guilty.” Conway asserts that, had counsel not provided him
incorrect information or withheld information from him, he would not have
pleaded guilty.
“A plea of guilty based on misinformation is involuntary.” 1 Fimberg v.
State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.] 1996, pet. ref’d); see
Tabora v. State, 14 S.W.3d 332, 336 (Tex. App.—Houston [14th Dist.] 2000, no
pet.) (quoting Brown v. State, 943 S.W.2d 35, 42 (Tex. Crim. App. 1997)).
Therefore, Conway’s claim that trial counsel gave him incorrect information in
order to convince him to plead guilty “is a reasonable ground to be alleged in a
motion for new trial and, if true, would render appellant’s plea involuntary.”
Rogers, 2011 WL 7290492, at *3; see Bearman, 425 S.W.3d at 331; Rivera v.
State, 952 S.W.2d 34, 36 (Tex. App.—San Antonio 1997, no pet.).
Accordingly, we grant Conway’s motion, abate this appeal, and restart the
appellate timetable from the date of this order. See TEX. R. APP. P. 43.6, 44.4;
Bearman, 425 .W.3d at 332; Radcliff v. State, 126, S.W.3d 534, 536 (Tex. App.—
Houston [1st Dist.] 2003, order). This appeal is abated, treated as a closed case,
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Although a defendant’s claim that he was misinformed by counsel, standing alone,
is insufficient for us to hold that his plea was involuntary, he is entitled to file a
motion for new trial to attempt to procure the necessary confirmation of his claim.
See, e.g., Fimberg v. State, 922 S.W.2d 205, 208 (Tex. App.—Houston [1st Dist.]
1996, pet. ref’d).
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and removed from this Court’s active docket. If the trial court grants the motion
for new trial, this appeal will be dismissed. If the trial court overrules the motion
for new trial, the appeal will be reinstated on this Court’s active docket.
It is so ORDERED.
PER CURIAM
Panel consists of Chief Justice Radack and Justices Jennings and Keyes.
Do not publish. TEX. R. APP. P. 47.2(b).
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