ACCEPTED
01-14-00924-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
8/14/2015 3:32:32 PM
CHRISTOPHER PRINE
CLERK
No. 01-04-00924-CR
____________________________________________________________________________
FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
IN THE COURT OF APPEALS
8/14/2015 3:32:32 PM
CHRISTOPHER A. PRINE
FOR THE FIRST DISTRICT OF TEXAS AT HOUSTON Clerk
____________________________________________________________________________
Ex Parte Nii-Otabil Nelson
____________________________________________________________________________
On Appeal from the 182nd District Court
Harris County, Texas
Trail Court Cause No. 1372073-A
____________________________________________________________________________
ANDRE EVANS & ASSOCIATES, PLLC
Andre D. Evans (SBOT 24082970)
3003 South Loop West Set. 108
Houston, Texas 77054
Telephone: (832) 941-1282
Facsimile: (646) 304-1054
Attorney for Appellant
APPELLANT’S MOTION FOR REHEARING
TO THE HONORABLE COURT OF APPEALS:
Nii-Otabil Nelson, Appellant, petitions this Court for a rehearing in the above-
styled matter after an unpublished opinion, dated June 30, 2015, which affirmed the trial
court’s order denying appellant’s habeas relief.
POINTS RELIED ON FOR REHEARING
1. The trial court abused its discretion when failing to include defense counsel’s
misstatement of law in its finding of facts.
2. The court of appeals erred in holding that Appellant cannot establish the second
prong of the Strickland test.
3. Appellant’s plea was not voluntary, and the Court of Appeal’s upholding of the
trial court’s ruling is the fruit of a violation of his Sixth Amendment right to
counsel.
ARGUMENT
A. The trial court abused its discretion when failing to include defense counsel’s
misstatement of law in its findings.
A trial court abuses its discretion when it acts arbitrarily and unreasonably or
without reference to guiding principles. Lyles v. State, 850 S.W.2d 497, 502
(Tex.Crim.App.1993). Here, Appellant was incorrectly informed by his trial counsel that
“he would have thirty days to come back and go over all the subpoenaed records that he
had or to correct any problems.” See RR 5:23-25; 6:1-4. Appellant’s trial counsel’s
statement was both, a factual and legal material misrepresentation that the Appellant
relied upon in making plea of nolo contedere. RR 6:1-2.
In the context of pleas, the focus of the prejudice inquiry is “on whether counsel’s
constitutionally ineffective performance affected the outcome of the plea process.” Hill v.
Lockhart, 474 U.S. at 59, 106 S. Ct. at 370. It is clear from the record that the attorney
for the State, Celeste Byrom, was under the impression that no affirmative acts done by
the trial counsel were sufficient to establish an ineffective assistance of counsel claim.
See Record of August 28, 2014 Oral Writ Hearing at 7 (14-17).
Byrom: “Whether or not the defendant believes that Mr. Simmons did X, Y, and
Z is not the issue. The issue here is was Mr. Simmons fully prepared for trial.”
RR 7:14-17.
Byrom's statements were misstatements of the law, which went without objection
in open court and were seemingly relied upon in the trial court’s decision.
It is axiomatic that, "to be constitutionally valid, a plea of guilty must be
knowingly and voluntarily made." United States v. Brown, 117 F.3d 471, 473 (11th Cir.
1997). And "a guilty plea is not knowingly and voluntarily made when the defendant has
been misinformed" as to a crucial aspect of his case. Id. Appellant’s plea was rendered
involuntary because Appellant was unconstitutionally induced into making a plea of nolo
contendere, by trial counsel’s misrepresenting a material aspect of Appellant’s rights
following the plea.
While, it has been long held that a defendant’s reliance upon a defense lawyer’s
material misrepresentations made to the defendant during the plea stage is grounds to
render a plea involuntary due to ineffective assistance of counsel, the prosecutor, Celeste
Byrom, in the present case blatantly disregarded such as a basis for Appellant’s claim.
Thus, Byrom’s actions were unreasonable, and prejudicial. Accordingly, the trial court’s
failure to consider, arguably the most compelling accusation in support of Appellant’s
ineffective assistance of counsel claim, is prejudicial and amounts to an abuse of
discretion because it is a departure from the applicable legal inquiry.
Reversal is required because the trial court’s failure to consider, or to provide a
basis for rejection of Appellant’s assertion that he was misled by his trial counsel about a
material aspect of his plea, which is grounds for a ineffective assistance of counsel
determination, is a gross deviation from the administration of justice; a departure from
the legal question at hand, and a willful and wanton violation to Appellant’s sixth
amendment right to counsel.
Further, it is apparent from the trial court’s finding of facts and conclusion of law
that it viewed the evidence in a light most favorable to the Appellant’s defense counsel,
and not the Appellant. The trial court gave greater reverence to trial counsel’s affidavit,
which failed to refute Appellant’s damning allegation that he misinformed the Appellant
on his rights following the plea; when both, the Appellant’s and Trial Counsel’s affidavits
shared the same evidentiary basis. Therefore, the trial court further abused its discretion
by acting arbitrarily, unreasonably and without reference to guiding principles.
B. The court of appeals erred in holding that Appellant cannot establish the
second prong of the Strickland test.
The appellate court appropriately applied the Strickland test, in determining
whether Appellant’s plea was involuntary, however the Court’s findings were saturated by
the lower court’s failure to uphold Appellant’s constitutional rights. In order to satisfy the
two-pronged Strickland test to be entitled to relief from a guilty plea, appellant must
show by a preponderance of the evidence that (1) trial’s counsel’s performance fell below
the objective standard of reasonableness and (2) there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068;
see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
Presently, our focus is on the second prong, reasonable probability. A “reasonable
probability” that the outcome would have been different for purposes of an ineffective
assistance of counsel claim is a probability sufficient to undermine confidence in the
outcome. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).
In Andrews, the court found that the prosecutor’s misstatement of the law
regarding the defendant’s punishment, and the defense counsel’s failure to object to, or
correct the misstatement, was sufficient enough to undermine the confidence in the
outcome. In the present case, similar to Andrews, the outcome relied upon multiple
misstatements of the law. Appellant was incorrectly informed by his trial counsel that
“he would have thirty days to come back and go over all the subpoenaed records that he
had or to correct any problems.” Also, the attorney for the State, Celeste Byrom, argued
that no affirmative acts done by the trial counsel were sufficient to establish an ineffective
assistance of counsel claim. See Record of August 28, 2014 Oral Writ Hearing at 7
(14-17).
Thus, the defense counsel’s affirmative misstatement of the law to Appellant, and
not mere omission, independently or combined with the State’s improper recitation of the
legal question, must certainly be sufficient to undermine the confidence in the outcome of
the plea process. Therefore, reversal is required because Appellant’s reasonable
probability burden has been met.
C. The Court of Appeal’s upholding of the trial court’s ruling is the fruit of a
violation of his Sixth Amendment right to counsel.
As stated earlier, it is axiomatic that, "to be constitutionally valid, a plea of guilty must be
knowingly and voluntarily made." United States v. Brown, 117 F.3d 471, 473 (11th Cir. 1997).
And "a guilty plea is not knowingly and voluntarily made when the defendant has been
misinformed" as to a crucial aspect of his case. Id.
This Court’s upholding of the lower court’s ruling is the fruit of the lower court’s
violation of Appellant’s Sixth Amendment right to counsel. When reviewing a trial court’s ruling
on a habeas corpus application, the reviewing court must view the evidence presented in the light
most favorable to that ruling, the court must uphold that ruling absent an abuse of discretion. See
Ex parte Mandujuano, 2013 WL 4007801, at *3 (citing Ex parte Ali, 368 S.W.3d at 831). The
reviewing court “affords almost total deference to at trial court’s finding of facts in habeas
proceedings, especially when those findings are based upon credibility and demeanor.” Ex parte
Amezquita, 223 S.W.3d 363, 367 (Tex. Crime. App. 2006). Because this Court is beholden to
this standard, its upholding of the trial court’s ruling is a direct result of the trial court’s abuse of
discretion in its failure to include Appellant’s most compelling assertion in its findings of facts.
A failure to reverse the ruling of the trial court will mean a failure to protect Appellant’s
constitutional rights, both on the trial, and appellate level.
PRAYER
For these reasons, Appellant, requests that this court grant this motion for
rehearing, withdraw its prior opinion and judgment, and issue an opinion and judgment
reversing the trial court’s judgment. Appellant also requests a new trial or any other relief
to which he may be entitled.
Respectfully Submitted,
ANDRE EVANS & ASSOCIATES, PLLC
3003 South Loop West Set. 108
Houston, Texas 77054
Telephone: (832) 941-1282
Facsimile: (646) 304-1054
By: /s/ Andre D. Evans
Andre D. Evans
(SBN 24082970)
andre@attorneyandreevans.com
Attorney for Appellant
CERTIFICATE OF COMPLIANCE
I certify that this document was produced on a computer using Microsoft Word 2007 and
contains 1,636 words, as determined by the computer software’s word-count function, excluding
the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).
By: /s/ Andre D. Evans
Andre D. Evans
Attorney for Appellant
CERTIFICATE OF SERVICE
I certify that a copy of Appellant’s Motion for Rehearing was served on the State of Texas
by and through his counsel of record, by electronic transmission on August 14, 2015.
By: /s/ Andre D. Evans
Andre D. Evans
Attorney for Appellant