WR-75,812-04
COURT OF CRIMINAL APPEALS
AUSTIN, TEXAS
Transmitted 10/28/2015 12:11:17 PM
Accepted 10/29/2015 9:00:21 AM
ABEL ACOSTA
No. WR-75,812-04 CLERK
EX PARTE § IN THE COURT OF
RECEIVED
COURT OF CRIMINAL APPEALS
§ 10/29/2015
§ ABEL ACOSTA, CLERK
CRIMINAL APPEALS
§
MICHAEL SHAWN SADLER § OF TEXAS
APPLICANT MICHAEL SADLER’S
MEMORANDUM IN RESPONSE TO TRIAL COURT FINDINGS
COMES NOW Michael Shawn Sadler, Applicant in the above-styled and
numbered cause, and submits this Memorandum in Response to the Trial Court’s
Findings.
Introduction
1. Applicant raised numerous claims of ineffective assistance of counsel
both at the trial and appellate levels arising from his prosecution, conviction and
appeal for the offense of murder. This Court determined that the issues presented
are cognizable and directed the trial court to: (1) require Applicant’s trial and
appellate counsel to respond to the claims; (2) appoint counsel for Applicant if
indigent and if the court elects to hold a hearing; (3) make findings of fact and
conclusions of law regarding the performance of trial and appellate counsel; and (4)
make any additional findings of fact and conclusions of law deemed relevant and
appropriate to the disposition of the writ application.
2. The trial court appointed the undersigned counsel and conducted a live
hearing in this matter on June 29, 2015.
Memorandum in Response to Trial Court Findings Page 1
3. After the hearing and considering the proposed findings of fact and
conclusions of law submitted by the parties, the trial court signed its findings of fact
and conclusions of law on July 14, 2015, and filed them on July 20, 2015.
4. The district clerk filed the trial court’s findings of fact and conclusions
of law with this Court in a supplemental record filed on July 24, 2015.
Erroneous Advice Regarding Plea Offer
5. In Applicant’s second ground, he alleges that trial counsel provided
ineffective assistance by giving erroneous advice regarding a plea offer made by the
State. Specifically, the State offered a 20-year plea offer for the lesser-included
offense of manslaughter. Applicant contends that trial counsel erroneously advised
him that manslaughter is an “aggravated” (i.e., 3g) offense that would require him
to serve one-half of his sentence before becoming eligible for parole. Applicant
stated in his original application filed with the district clerk on January 14, 2015 that
he “would have accepted the State’s offer” but for counsel’s erroneous advice.
(Habeas Application at 9)
6. This Court has recognized that a habeas applicant has a valid
ineffective-assistance claim due to erroneous advice regarding a plea offer if the
applicant shows “a reasonable probability that: (1) he would have accepted the
earlier offer if counsel had not given ineffective assistance; (2) the prosecution
would not have withdrawn the offer; and (3) the trial court would not have refused
Memorandum in Response to Trial Court Findings Page 2
to accept the plea bargain.” Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App.
2013).
7. Applicant testified at the live hearing that his trial counsel told him
(erroneously) that manslaughter was an aggravated offense for which he would have
to serve at least half his sentence before he would be eligible for parole. When
presented with the proper information regarding the fact that manslaughter is not a
3g offense, Applicant testified that “it’s a strong possibility” he would have accepted
the plea offer but for counsel’s erroneous advice. (Record of June 29, 2015 hearing
at 22).
8. The trial court made the following relevant findings (Findings Nos. 8,
9, 14, 15) regarding this claim:
• Applicant was on probation for possession of a controlled substance
and there was a pending motion to revoke probation before the court.
• The State offered to reduce the charge from murder to the offense of
manslaughter if Applicant would agree to twenty years incarceration,
plus seven years incarceration in the possession of controlled substance
case. As part of this offer, the sentences were to be stacked. The State
does not dispute that it would have honored the plea offer.
• Applicant rejected the plea agreement with the understanding that he
would have to serve at least one-half of his sentence before he would
be considered for parole and he would have an additional seven-year
sentence to serve on the controlled-substance case.
• Applicant testified at the hearing that he “would have considered” the
State’s plea offer had Mr. Walker advised him that manslaughter was
not an aggravated offense under Article 42.12, § 3g of the Code of
Criminal Procedure. Applicant made no statement that there was a
Memorandum in Response to Trial Court Findings Page 3
reasonable probability he would have accepted the state’s plea
offer if he had received different legal advice. Applicant insisted to
Mr. Walker that he was innocent and Mr. Walker believed that he was
not going to plead for that reason. There is no credible evidence that
Applicant rejected the plea due to bad legal advice or that he would
have accepted the plea offer if given different legal advice. (emphasis
added)
. 9. Regarding the last quoted finding (Finding No. 15), the trial court
appears to have been fixated on Applicant’s failure to quote the relevant case law
cited above regarding the showing necessary to obtain habeas relief because of
erroneous advice concerning a plea offer. Although Applicant did not recite the
precise words employed by this Court in Argent or similar cases regarding his
likelihood of accepting the plea offer had he been given sound advice, his testimony
clearly established a reasonable probability that he would have accepted the offer if
his attorney had given the correct information. Cf. Bryant v. State, 391 S.W.3d 86,
92 (Tex. Crim. App. 2012) (“a party “need not spout ‘magic words’” to preserve an
issue for appellate review). In addition, he expressly stated in his original habeas
application that he “would have accepted the State’s offer” but for trial counsel’s
erroneous advice. (Habeas Application at 9).
10. For these reasons, Finding No. 15 is not supported by the record.
11. Based on the evidence presented, Applicant established that he received
ineffective assistance of counsel because of counsel’s failure to properly advise him
that manslaughter is not a “3g offense” that would require him to serve a minimum
Memorandum in Response to Trial Court Findings Page 4
of half the agreed-upon sentence before becoming eligible for parole. Stated
differently, Applicant established a reasonable probability that he would have
accepted the manslaughter plea offer but for counsel’s erroneous advice.
WHEREFORE, PREMISES CONSIDERED, Applicant Michael Shawn
Sadler requests that the Court grant the relief requested in the writ application, and
grant such other relief to which he may show himself justly entitled.
Respectfully submitted,
/s/ Alan Bennett
E. Alan Bennett
Counsel for Applicant
SBOT #02140700
Sheehy, Lovelace & Mayfield, P.C.
510 N. Valley Mills Dr., Ste. 500
Waco, TX 76710
Telephone: (254) 772-8022
Fax: (254) 772-9297
Email: abennett@slmpc.com
Certificate of Service
The undersigned hereby certifies that a true and correct copy of this document
has been served by email on October 28, 2015 to counsel for the State, B.J. Shepherd,
220thda@gmail.com.
/s/ Alan Bennett
E. Alan Bennett
Memorandum in Response to Trial Court Findings Page 5