Henry, Willie Iii

~7 3 Qj^^f.ifomTGfepmm^Lhfm
J MAR 23 2015
INMATE GNSWCRN DECLARATION

My name is Willie Henry/ III and I am incarcerated in the Wyhfv Sgifi, Clerk
810 Fm 2821 Huntsville, Texas, 77349. My Tdc# is 1550834. I am over the age •
of IS years old and I am competent to give this statement. I have personal

knowledge that every statement contained herein (affidavit, motions) are

true and correct. And that the documents included are true and correct •.-..
copies. MOTION D@M|P
The motions filed are not for delay nor to waste resourcegftfeut axe-
serious and meritorious grounds for which I have no other remedy. On Aug
ust 27,2007,.! entered a no contest plea to aggravated assault. However,

I was never notified about the element of serious bodily injury. I entered
th.-; plea agrramant undar misleading advice of trial counsel.
I.Counsel told me that aggravted assault was a lesser included offense to
the grand jury's charge of ,zax assault- (?.C- 22.011(C)) '
2.Counsel told me that I could not have a jury trial on the original off
ense of sex assault, because I ran out of money-
3-Counsel told rae that I was not allowed to have any witnesses in rcy favor.
4. I was never made aware of the re-indictment which the docket sheet shows
as being done on September, 2006-
b-Counsel failed toiinform ma that the case-was set for trial on 3-27-2007.
I only found out the weekend before that Monday through a phone call from
uiy bond coEpany.
6.Counsel failed to do any investigation of witnesses cr victim.
7. I made it known to the trial court that 1 wanted a jury trial but was
coerced into a plea because I ran out of money to pay lawyer.
8.1 am innocent of the offense as pleaded to and also/ grand jury offense
as alleged in indictments. I was never informed of my right to be tried
on offenses only alleged by a grand jury screening of charaes.
9.Had I been .informed of all of these facts and riqhts, I never would have
entered the plea-

I Willie Henry, III, do declare under the penalty of perjury that
every statement is true and correct and that I have reviewed each statement
contained in the notion and affidavit.. I ask this court to accept this
unsworn- initiate declaration in place of a notorized affidavit.

?iu 3e--

Dau
 iStOlS'M
NO.

WILLIE HENRY/III IN THE COURT OF

PETITIONER CRIMINAL APPEALS
§
AUSTIN,TEXAS
§
STATE OF TEXAS
§

MOTION TO RESET TIME TO FILE MOTION FOR,NEW TRIAL

To Honorable Judge(s) OF SAID COURT:

I, Willie Henry,III, comes filing pro se, this motion to

reset the time to file a motion for new trial and to have this

Honorable Court to order a hearing in the trial court in order

to determine during that evidentiary hearing if the motion for

a new trial should be qranted.

I .

This motion comes from trial court no. 98575, in the 252nd

District Court of Jefferson County, Texas. The 9th court of

Appeals, Jefferson county affirmed the conviction in (09-09-0002

9-CR) I just recently sent a motion to the 9th COA asking that

the appeal be abated but was told that since there was no appeal

pending, that no action would be taken. (Exhibit )

II .

Pro se petitioner, therefore presents to this Court the fol-

lowinq requests:

l.That this Honorable Court apply rule 2 of the TX. Rules of

Appellate Proc., which allows the suspension of rules of op

eration for "qood Cause" in a particular case, and order a

different procedure; as long as it does not suspend a provision
in the Code of Criminal Procedure, or to alter the time to per

fect an appeal in a 'Civil1 case. Oldham v. St., 898 sw2d 461;

5 sw3d 840

II.

Good cause exists as exception to time limitation for fil

ing of motion for new trial where defendant is without counsel

durinq critical staqe of prosecution, such as in this present

case. Counsel was needed in order to file the motion for new

trial after the adjudication of guilt on the offense of aqqra-

vated assault causing serious bodily injury. The date of adju

dication was January 12, 2009. The motion for new trial was then

due within 30 days. February 11,2009.

Mr. Kevin Laine, who had been retained durinq the revoca

tion proceedinqs did not remain as the attorney. He drew up the

notice of appeal and mailed that form to me, which I then signed

dated, and forwarded to the clerk of the court. As shown by the

docket sheet (ex ), the court appointed Mr. Doug Barlow as

appeal attorney on January 26, 2009. Mr. Barlow had until the

11th, day of February to file the motion for new trial, but fail

-ed to do so. In fact, he failed to perform any of his duties

listed under the Tx . CCP. art. 26.04 (j)(l,2). Because he neve

contacted me by any means, there has been great prejudice to

me. Substantive Due process violation has transpired because I

had no counsel to present the claims of ineffective assistance

of counsel and the involuntary plea to the aggravated assault of

-fense.

The plea was involuntary due to the IAC and there was need

to develop the record for an appeal; and that could only be done

N\,-3l
through a hearinq on a motion for new trial. There was not any
time before the plea hearinq, that the element of serious bod

ily injury revealed to me by anyone. It was only added at the
plea hearing to an indictment which I had no knowledqe of. The
grand jury indictment that I knew about contained no allegation
of violence or injury. (Cause no. 86400) Nor was the legally de

fined term included in the plea papers which I was made to sign

before the hearinq.

Trial counsel, Mr. Samuel, also gave me incorrect informa

tion that aggravated assault was a lesser-included offense of
sexual assault as alleged by the qrand jury. But most impor

tantly, he told me that I had to come up with more money imm
ediately if I wanted to exercise my right to a jury trial
which I certainly requested. My waivers to jury trial and the

other Constitutional Riqhts were involuntary and the record

reflects that the trial court was aware of that fact. (Report

er's Record Vol. 5, p. 14;PSI)

These issues should have been brought up in the motion for

new trial phase and were not because counsel which had been app

ointed to represent me never at any time made contact with me to
discuss what happened. He was then replaced when my family poole

their resources toqether and retained Mr. Hugh O'Fiel. Mr. Douq

Barlow was replaced on February 17,2009. After the time to file

a motion for new trial had expired.

"Where defendant was deprived of counsel during period in which
motion for new trial was required to be filed, mandate would iss
-ue disposing of appeal so that defendant could file motion for
new trial." Rule 31(a); Cox v. St., 797 sw2d 958

III.

It will be shown that durinq this critical stage of beinq
able to file the motion for new trial, I was without the Con

stitutionally guaranteed assistance of counsel in order to file

the motion within the 30 days which is required under the rules

of appellate procedure. (Procedural and Substantive requirements

are found in the TX. Rules of App. Proc. § 21.1 - 21.9)

IV.

The 9th COA found that in appeal no 09-09-00029-CR, that the'

issues raised by counsel on appeal were not coqnizable on an

appeal from a plea bargain case and they did not have the jur

isdiction to consider the IAC claims which were raised bv the

counsel on appeal. It must be stated that Mr. O'Fiel, appeal

counsel never contacted me nor responded to my letters either.

The Honorable Court of Appeals affirmed the conviction on the

appeal, but I strongly believe that the appeal should have been

dismissed and not affirmed, when the court found that the issues

could not be presented on appeal. See: Phynes v. St., 828 sw2d

1,2; CCP.art § 42.12 et seq

V.

In support of this motion, I have included affidavits and

the docket sheets from the trial court; as well as a short brief

VI .

I, Willie Henrv, III, Prays, that this Honorable Court would

consider and grant this motion to apply Rule 2, and without ov

erturning the trial court's conviction, remand to the trial

court for an evidentiary hearing, so that I can file a motion

for new trial and to have counsel appointed durina a hearinq on

the said motion.

NY-H
 RESPECTFULLY .SUBMITTED,

WILLIE HENRY,ITT
PRO SE

Date

TDC# 1550834
Wynne Unit
810 FM 2821
Huntsville, TX. 77349

IV s
 X&er^Vy c£ ?osr\i.

V00\ ¥ejjx\ S>t.

ke£eASt>
NVv. tV:uAvfi\(\ Sc^ud - Tr\a\
s^cn vio". ocmtsss
SuS tcvAacn

6feof Hoi oo^S3\3
UoH (Means SWcdb
 PETITIONERS BRIEF IN SUPPORT OF MOTION

On Auqust 27, 2007, petitioner entered a plea to aggravated assault
pursuant to a plea baraain. The Grand Jury originally indicted him with the
offense of sexual assault § 22.011(E) (Indicted in July term 2005;No.86400)
It was in his knowledge that this was the only indictment in existance. How
ever, the docket sheet shows that a re-indictment was issued in September,

2006. Petitioner had no knowledae of a reindictment because he had never been

brought to court and arrainaned on the new indictment. This court will find
that petitioner never signed the resettinq from the indictment being reiss
ued under cause no. 98575.

On January 12, 2009, the trial court revoked the deferred adiudication
and adjudicated quilt on the offense of agqravated assault causinq serious
bodily iniury. He was sentenced to 18 years confinement in the TDCJ Inst.
Division.

STATEMENT OF FACTS

Mr. Audwin Samuel was the trial attornev in the case. He was hired in

Sept. ,2005, to represent Henrv in cause no. 86400. Mr. Samuel was given a
list of witnesses and their phone and address numbers. He never contacted

any of them nor interviewed the alleged victim. In Sept. 2006, the reindict
ment was issued under cause no. 98575, but Mr. Samuel never informed him, nor

was he ever arraiqned on the new charge.
After the court adjudicated guilt, Henry's attorney for revocation,
Mr. Kevin Laine, mailed Henry the notice of appeal to sign and forward to
the clerk. (January 22,2009) The trial court then appointed Mr. Doug Barlow
for the appeal. Mr. Barlow never made any contact with Henrv. (Appointed on
Jan. 26th and released on Feb. 17th, 2009) The Feb. 17,2009 date was about

six (6) days later than the motion for new trial needed to be filed. Henrv,
[was without any assistance of counsel durinq the 30 dav period in which to
file the much needed Motion for New trial.This was a critical staae of pro-
ceedinqs. In Cox v. St., 797 sw2d 958, the court held that "where defen
dant was deprived of counsel during the period in which motion for new trial
was required to be filed, mandate would issue disposing of appeal so that
defendant could file motion for new trial." Rule 2; Rule 31(a) R.App. Proc.
The Tx. R. App.Proc. 21.1 - 21.9 implicate procedural and substantive
due process rights. In this case, defendant's substantive right to due pro
cess has been violated. See; Sena v. New Mexico St. Prison, 109 F.3d 652

^
 The trial court accepted an involuntary plea and committed a funda
mentally unfair act in doinq so. As in this present case, the trial court
accepted a plea which it knew or should have known was involuntary, and then
because of IAC at the time to file the motion for new trial, Henry, has been
unable to have any meaninqful review or hearinq on the issue. See; Massinqil
v. St., 8 sw3d 733 "In order to obtain meaningful appeal, sometimes a defen
dant must prepare, file, present, and obtain a hearing on a motion for new
trial; it is unreasonable to require him to do this without assistance."
Henry, filed pro se, habeas corous 11.07, and earnestly attempted to
state claims in the only way he knew how, but since he is not an attorney nor
did he have assistance of counsel, the writ was denied. These were issues

claimed by Henrv on the writ application but obviously, He had no clue as
to how to do a writ application or memorandum. Without counsel, the pro
cess was in vain and falwed. When it is the State's process to bring IAC ~.~;
claims to review without assistance of counsel denies meaningful review, the
State has to bear resoonsibilititv. Martinez v. Ryan, 132 S.CT. 1309; Tre-
vino v. Thaler, 133 S-CT. 1911

Herein, it is contended that he was without effective assistance of
counsel at the plea baraain phase, the appeal phase, and the motion for new
trial, phase. These are all critical chases in which there was lac or no Coun
sel and thus the violation of substantive due process riqhts. As a result,
he has been left with no adequate remedy, except to ask this court to apply
Rule 2 of the Rules of App. Proc. and to remand to the trial court for a
hearina to determine if a new trial is warranted. It has always been Henry's
desire to file claims of IAC durina the plea barnain phase and present the
claim that the plea of no contest was entered involuntarilv due to IAC.

DENIED COUNSEL AT CRITICAL STAGE

After review, this Honorable Court will see that Petitioner did not de
lay in presentina his claims of IAf"1 nor was there delay in presentinq the in
voluntary plea claim. Petitioner's wife, mother, sister, and niece pooled
resources toaether to hire Mr. O'Fiel as appeal attorney after the revocation
and he filed an appeal in the 9th pda (09-09-00rPQ-CR). However, he never
contacted Henrv to find out what went on and aet an accurate nicture. He neerf
-ed to develon the record to file an appeal. Counsel was also ineffective

by filina on appeal, issues which were not appealable. C.CP.art.42.12 et
seq; phynes v. St., 828 sw2d 1,2; Donovan v. ST., 68 sw3d 633. Voluntariness

&~d~
of a olea may be raised by a motion for new trial an^ habeas corpus for re
lief of adjudication but not on appeal.
Due to appointed counsel, Mr. Barlow's failure to carrv out his duties

under CC.p. § 26.04(j)(1,2) which states that an attorney is expected to
make everv reasonable effort to contact the defendant not later than the firs*-

workinq dav after the date on which the attornev is appointed, and represent

the defendant...until aquitted..- or the attornev is relieved of his duties
bv the court or replaced by other counsel after a findinq of aood cause is

entered on the record.

The Docket sheet will reflect that fhe date of adjudication was 1-12-09,

which aave until c. 2-11-09, to file a motion for new trial. Mr. Rarlow was

appointed on 1-26-09 and not released until 2-17-09 at which time the time to

file the motion for new trial had expired with no assistance of counsel durin3
that critical phase.
This honorable court of criminal appeals has the power to remand so that
a motion for new trial can be filed as an out of time motion. Anr) has the pow

-er to order an evidentiary hearinq. (Full and Fair Hearinnl

Caldwell v. Thaler, 770 F. Supp. 2d 849"The 14th Amendment to the due pr
-ocess clause of the United States Constitution guarantees a criminal app
ellant the right to counsel in his first appeal of right." In the case of
Henrv, he has been denied that rinht quaranteerl bv the U.S. Constitution. Fur
-ther, he has been subjected to 18 years, (9% served) for a crime which never
took place, since there was no serious bodily iniurv, pursuant to an in
voluntary plea. The DA's records will show that the alleaed victim never
made a claim as to iniurv nor sexual encounter beinn of an assaultive na

ture bv physical force. A hearina must be ordered in order to provp the

claims.

PRAYER

Petitioner prays that after consideration and liberal interpretation of
the motion and brief, alonq with the documents presented; that this Court wil

suspend rules under Rule 2 and remand for a hearinq in the trial court. He al
-so prays that the appeal is dismissed and not affirmed(09-09-0002Q-CR).
If remanded that counsel is appointed because he is indiqent and only re

ceives about $20 per month, and that a bench warrant is issued so that he

can be present at the hearinq.

&-3
 REspectfullv Submitted,

Pro Se " 0>

Date

Declaration

I Willie Henrv, tti, do declare under the penalty of periurv that I have
personal knowledqe that everv statement contained herein are true and that all
documents submitted are true and correct copies of the originals. All other
documents such as relevant transcripts have been previouslv presented an-^i t

have no other copies available.

MKt ft \h\\
Pro Se
&-

3-n- \5
Date

Certificate of Service

I Willie Henrv TTI, can not certify that he has sent a copy to the

District Attorney's Office of Jefferson County , Texas, because he has no

possible way to make copies. T respectfully ask that the clerk provide a
copy to the District Attorney's Office on mv behalf at the followina:

1001 Pearl St.

Beaumont, Texas 77701

Pro SE V\^

Date
 ^j*-
(^252ND ( )CRIMINAl ( )ORUQ 3 v RUG 4
<\V
DISTRICT COURT OF JEFFERSON COUNTY, TEXAS

No(s)_
WMj^r
Date
:—9-it^.
() Designation of Attorney
() Arraignment/Announcement
Defendant
( ) Hearing of Pre-Trial Motions

(;) Plea or Disposition
^Jury trial/ Court trial )(LmuAy{
Attorney of Record- ()Apptd~i( jHired"
( ) Probation Revocation Hearing/Plea
() Probation Revocation Announcement
PrtfTrName
() Post Conviction Motions
() Sentencing
() Bond Proceedings
() Habeas Corpus
( ) -
M
Proteoutor(1)(2)(3)

NOTICE OF nEiETTINO

THIS CASE IS RESET UNTIL S^"" J^2oOU® -.\^P
( ) not reached/continued from Trial Docket
COURT NOTES;

Winftl&Med- fan ffWO

i^y
a
Court Official
 „wl
>J0252NO ( JCRIMINAL ( )DRUQ 3 ( )DRUG 4
DISTRICT COURT OF JEFFERSON COUNTY, TEXAS

N0(S) Cfesi^ State vs.. LXM^iW
V
Date -.yisi^
() Designation of Attorney
() Arraignment/Announcement
ucnraflm
Hearing of Pre-Trial Motions
*( ) Plea or Disposition
() Jury trial/ Court trial

i ) Probation Revocation Hearing/Plea
.1 lACyik*-
Aftomey of Record ()Apptd ( (Hired

() Probation Revocation Announcement
Print Name
() Post Conviction Motions
() Sentencing
{) Bond Proceedings
() Habeas Corpui
( )
Prosecutor (i) (2} (3)
fi

NOTICE Of. .•;r-* <*!..;*•• ! ukf

THIS CASE IS RESET UNTIL.
( ) not reached/continued from Trial Docket
COURT NOTES;

^^^0^dMU2 -
14

, &--
Court OHWal
 C^252ND ( )CRIM!NAL ( )DBUO 3 ( )DRUQ 4
b y>1
DISTRICT COURT OF JEFFERSON COUNTY, TEXAS

No(s)___ QftS^S ?AM va, \kXQJ)juL VWvA
Date:

() Designation of Attorney
() Arraignnienl/Announcement
( ) Hearing of Pre-Trial Motions
( ) Plea or Disposition
J^Jury trial/ Court trial
Attorney of Record ( ( [Hired
k) Probation Revocation Hearing/Plea
() Probation Revocation Announcement
Print Name
() Post Conviction Motions
() Sentencing
() Bond Proceedings
() Habeas Corpyt.
< ) \K
Pro*8etftof(l)(2)(3)

NOTICE Of REg&mm

THIS CASE IS RESET UNTIL. t 3TI iqcP
AM
"GflHWi rf.;^'
_«Uit V1*
e^
 THE STATE OF TEXAS^ .
10
CRIMINAL DOCKET
/iJA/^Lu| //Z
vs. No..
VOL. PAGE
DATE OF ORDERS ORDERS OF COURT-(Continued)
Moolh Par Vtw
Court order entered regarding alleged pnunor, w
51 of3 lFtrinn Tl»P Disti.-i Artarney is '
Defendant found guilty by the Court.The Court as
StortftfteCourtCMmimtA
^ p^ .date-
I IL(& sessed the defendant's punishment at confinement
in the Institutional Division of the Texas D
ment of Criminal Justice for a term ot_/j
yeais. OelenUmii duly sanleinjeii tu
years confinement in the Institutional DivisionuAf
fpo Tovac ncpartmpnl nf rrimiml liirtira
L& D°\ ^CUM.
L.2&M ^fopem A^rvA; ^ K^, T„ QfocvNQ—/Lv\i A,,
 CD
DOCKET-CRIMINAL DISTRICT COURT
BONDSMEN:
DATE OF FILING
ATTORNEYS OFFENSE
Month Day Yea
THE STATE OF TEXAS
'tyl£yS o°\ r>l Of- fWftl WlM.O^-£«A»vl»rXrA AjlOKv' ftUto
IjlMW VW^ itt. fcrnfe
DATE OF ORDERS
ORDERS OF COURT VOL. PAGE
Month Day Year
a \7± o°i okA-W. ir-A h4-fnAj>5>an*\s>A rS- A-^'KjiA. A X.-TflTi i~Wd^ OTiui?
£ n o • YWg~iA 0'T**J>. Ka^-^ .
0> ^ O '
•
r