ACCEPTED
01-14-00659-CR
FIRST COURT OF APPEALS
HOUSTON, TEXAS
5/4/2015 10:30:35 PM
CHRISTOPHER PRINE
CLERK
No. 01-14-00659-CR FILED IN
1st COURT OF APPEALS
HOUSTON, TEXAS
In the 5/4/2015 10:30:35 PM
Court of Appeals CHRISTOPHER A. PRINE
for the Clerk
First District of Texas
at Houston
No. 1424502
In the 262nd District Court
Harris County, Texas
JASON CLIFFORD CONWAY
Appellant
V.
THE STATE OF TEXAS
Appellee
APPELLANT’S BRIEF
MAITE SAMPLE
Attorney for Jason Conway
State Bar No.: 24052072
405 Main St. Ste. 950
Houston, TX 77002
(713) 909-9685
Fax: (713) 229-9996
maite.m.sample@gmail.com
ORAL ARGUMENT REQUESTED
TABLE OF CONTENTS
STATEMENT REGARDING ORAL ARGUMENT ....................................... i
IDENTIFICATION OF THE PARTIES ........................................................... ii
INDEX OF AUTHORITIES ............................................................................. iii-iv
STATEMENT OF THE CASE ......................................................................... 1
STATEMENT OF THE FACTS ....................................................................... 2
SUMMARY OF THE ARGUMENT ................................................................ 5
APPELLANT’S FIRST POINT OF ERROR -
The trial court abused its discretion in denying Appellant’s motion for
new trial and request for hearing on the motion for new trial. ........................... 6
APPELLANT’S SECOND POINT OF ERROR –
Appellant’s plea was involuntary due to ineffective assistance of
counsel. ………………………………………………………………… .......... 14
PRAYER ........................................................................................................... 21
CERTIFICATE OF SERVICE .......................................................................... 21
CERTIFICATE OF COMPLIANCE ................................................................ 22
APPENDIX: EXHIBIT A – Trial Counsel’s Affidavit
STATEMENT REGARDING ORAL ARGUMENT
Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, oral
argument is requested because this case presents an important question about
coercive plea bargaining tactics used by trial counsel as well as the
voluntariness of Appellant’s plea.
i
IDENTIFICATION OF THE PARTIES
Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the
names of all interested parties is provided below.
Counsel for the State:
Devon Anderson - District Attorney of Harris County
Alan Curry - Assistant District Attorney on appeal
Chris Handley - Assistant District Attorney at trial
Harris County District Attorney’s Office
1201 Franklin St. Ste. 600
Houston, TX 77002
713-755-5800
Appellant or criminal defendant:
Jason Clifford Conway
Counsel for Appellant:
Kathryn Robinson Wallace- Counsel at plea
12401 S. Post Oak Rd.
Suite 226
Houston, TX 77045-2020
(713)551-8626
Maite Sample - Counsel on appeal
405 Main St. Ste. 950
Houston, TX 77002
713-909-9685
Trial Judge:
Hon. Denise Bradley
262nd District Court, Harris County, Texas
ii
INDEX OF AUTHORITIES
CASES
Bruno v. State, 916 S.W.2d 4, 8 (Tex. App.—Houston [1st Dist.] 1995, pet.
ref’d)
Colyer v. State, 428 S.W.3d 117, 122 (Tex. Crim. App. 2014)
Ex parte Chandler, 182 S.W.3d 350, 353 (Tex. Crim. App. 1999)(citing
Strickland v. Washington, 466 U.S. 668, 694 (1984))
Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App. 1999)(quoting
Ex parte Morrow, 952 S.W.2d 530, 536 (Tex. Crim. App. 1997))
Ex parte Reedy, 282 S.W.3d 492, 500-01 (Tex. Crim. App. 2009)
Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990)
Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.-Houston [1st Dist.] 1996
pet. ref’d)
Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App. 2003)(citing
Strickland, 466 U.S. at 690)
Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim. App. 2010)
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)(quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001))
Holden v. State, 201 S.W.3d 761, 763 (Tex. Crim. App. 2006).
Jackson v. State, 766 S.W.2d 504, 508 (Tex. Crim. App. 1985)
iii
Martinez v. State, 74 S.W.3d 19, 21 (Tex. Crim. App. 2002)
McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App. 1981)
Mendoza v. State, 935 S.W.2d 501, 503 (Tex. App.—Waco 1996, no pet.)
Messer v. State, 757 S.W.2d 820, 824 (Tex.App.—Houston [1st Dist.] 1988,
pet. ref’d.)
Munoz v. State, 840 S.W.2d 69, 74 (Tex. App. – Corpus Christi 1992, pet.
ref’d)
Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).
Torres v. State, 4 S.W 3d 295 (Tex. App.—Houston [1st Dist.] 1999, no pet.)
Wallace v. State, 106 S.W.3d 103 (Tex. Crim. App. 2003)
RULES
TEX. R. APP. P. 9.4(g)
TEX. R. APP. P. 21.4
TEX. R. APP. P. 21.6
TEX. R. APP. P. 21.7
TEX. R. APP. P. 38.2(a)(1)(A)
TEX. R. APP. P. 39.1
STATUTES
TEX. CODE CRIM. PROC. ANN. art. 26.13(b)
iv
TO THE HONORABLE COURT OF APPEALS:
STATEMENT OF THE CASE
Appellant was charged by indictment with the second-degree felony
offense of assault against a family member by impeding breathing. (CR I 7).
He originally entered a plea of not guilty and requested a jury trial with
punishment to be assessed by the jury in the event that he was found guilty.
(CR I 128). Prior to the beginning of voir dire the state abandoned the
language in the indictment alleging impeding breath and offered to abandon
the punishment enhancement paragraphs in exchange for Appellant’s plea of
guilty to a Pre-Sentence Investigation hearing (PSIH). (CR I 52).
Accordingly, Appellant changed his plea to guilty and pled without an
agreed recommendation to the court for a PSIH for the third degree felony
offense of assault family member second offender. (CR I 144). At the
conclusion of the PSIH, the court sentenced Appellant to ten (10) years
confinement in the Institutional Division of the Texas Department of
Criminal Justice (TDCJ-ID). (CR I 144). The Trial Court’s Certification of
Defendant’s Right of Appeal dated April 30, 2014 indicates that Appellant
has the right to appeal. (CR I 127). Appellant’s notice of appeal was filed
with the 262nd District Court on July 27, 2014. (CR I 147).
1
STATEMENT OF THE FACTS
Appellant was accused of choking Alicia Barrens on or about
November 16, 2013. (CR I 7). Complainant and Appellant both admit that
they had a heated argument that evening about their relationship. (RR III
17,18) (RR III 30). But while Appellant alleges that he did nothing more
than push Ms. Barrens after she called him a “Nigga Fuck Up” and spit in
his face; Ms. Barrens alleges that Appellant choked her until she lost
consciousness. Id. She visited an urgent care clinic the next day and was
examined by a doctor who found that Ms. Barrens had no change in voice,
no sore throat, no difficulty swallowing, no neck pain, no muscle aches, no
depression, no suspicious lesions, as well as a normal neck inspection,
supple, with good range of motion, no bruising or swelling on the anterior
neck. (CR I 113, 114). A second visit to the same clinic by complainant on
November 21, 2013 resulted in nearly identical findings. (CR I 115, 116).
After at least six resets Appellant’s case was set for trial in the 262nd
District Court on April 30, 2014. (CR I 16, 19, 25, 26, 27, 120). By trial day
Appellant had been subjected to months of plea bargaining and
admonishments from the trial court as well as trial counsel urging him to
plead guilty. (CR III 34,35). On trial day, trial counsel failed to object when
the state abandoned language in the indictment, thereby changing the offense
2
he was being tried for. (RR II); (CR III 16). Trial counsel also withheld
important witness information from Appellant – namely about reluctance on
the part of the doctor who examined the complainant to testify for the State.
(CR III 16, 17). She also gave Appellant incorrect advice about the
procedure in a PSIH. Id. Furthermore, on trial day trial counsel advised
Appellant that he would surely die in prison and never see his family again if
he was convicted at trial because life expectancies in prison are low and his
parents would be dead in 25 years. (CR III 28). Then, with the jury panel in
the hallway, trial counsel brought him a note signed by his parents urging
him to take the plea. Id. It was the totality of all of these circumstances that
overcame his will to fight his case. At that point in the proceedings
Appellant felt he had no other choice, so he pled guilty to assault family
member second offender and had his case reset for a PSIH. (RR II 9) (CR I
16, 17, 27, 28) (CR III 34, 35).
On July 24, 2014 the trial court held the PSIH. (RR III). Contrary to
trial counsel’s advice before his guilty plea, no cross examination of the
complainant nor any additional witness testimony or mitigating evidence
was presented. Id. At the conclusion of his PSIH the trial court sentenced
Appellant to the maximum sentence of 10 years in TDCJ-ID. (RR III 10).
3
Appellant filed his notice of appeal three days later on July 27, 2014
(CR II 14). On Thursday, August 14, 2014 the undersigned counsel was
appointed to represent Appellant on his appeal. Id. Appellant filed and
presented his motion for new trial with the trial court on September 29, 2014
(CR II 3). On October 23, 2014 this court granted Appellant’s Emergency
Motion to Abate Appeal and Remand for Hearing on Motion for New Trial
and Permission to File Out of Time Motion for New Trial (CR II 11, 12).
The sole ground in the motion for new trial was that Appellant’s plea
was involuntary due to ineffective assistance of counsel. Id. In support of
his motion, Appellant attached an unsworn declaration detailing the
interactions with trial counsel that led to his involuntary plea. (CR III 16,
17). Trial counsel filed her own affidavit in response to Appellant’s motion
and unsworn statement attached hereto as Exhibit A. (Exhibit A). The case
was set for a live evidentiary hearing on December 16, 2014. (CR II 25).
However, on that day TDCJ-ID did not bring Appellant to court so the
hearing was rescheduled for December 23, 2014. (CR III 42). But on
December 19, 2014 the trial court told Appellant and the undersigned
counsel that she no longer wished to have a live evidentiary hearing, instead
she would make her ruling based on her recollection of the case, as well as,
affidavits and statements from the parties. (RR V 6). The undersigned
4
counsel objected to this sudden change, but the trial court overruled the
objection. (RR V 7). Appellant and his mother prepared additional unsworn
statements in response to trial counsel’s affidavit. (CR III 27-31).
Additionally, Appellant wrote a letter to the trial court that was hand
delivered to the court on January 5, 2015. (CR III 34, 35). That same day,
the trial court denied Appellant’s request for a hearing and denied the
motion for new trial over objection by Appellant’s appellate counsel. (CR
III 15).
SUMMARY OF THE ARGUMENT
Appellant’s plea of guilty was made involuntarily as the result of
coercion and incorrect advice by Appellant’s trial counsel as well as
repeated coercive admonishments by the trial court. Furthermore, the trial
court abused its discretion in denying Appellant’s motion for new trial and
request for live evidentiary hearing. In his motion for new trial, Appellant
alleged that his plea was rendered involuntary due to ineffective assistance
of trial counsel. He attached an unsworn declaration explaining that trial
counsel withheld information about the availability of an important trial
witness. Additionally, trial counsel admonished Appellant about dying in
prison and never seeing his family again if he did not take the State’s plea
bargain offer. Appellant explained in his unsworn statements that the
5
totality of the circumstances leading up to his plea were such that his will to
fight was overcome. Although he desired to have a jury trial, he felt forced
to plead guilty. Appellant insists that had his trial counsel been honest with
him about the availability of the doctor who examined the complainant, had
she not given him incorrect information about how a PSIH would proceed,
and had trial counsel and the trial court not coerced him through their
repeated admonishments, he would never have pled guilty, but instead
would have insisted on going forward with his trial.
APPELLANT’S FIRST POINT OF ERROR
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
APPELLANT’S MOTION FOR NEW TRIAL AND REQUEST FOR
HEARING ON THE MOTION FOR NEW TRIAL.
STANDARD OF REVIEW FOR DENIAL OF MOTION FOR NEW
TRIAL AND EVIDENTIARY HEARING
Appellate courts review a trial court’s denial of a motion for new trial
under an abuse of discretion standard by determining whether the trial
court’s decision was arbitrary or unreasonable. Colyer v. State, 428 S.W.3d
117, 122 (Tex. Crim. App. 2014). A trial court abuses its discretion in
denying a motion for new trial when the record could not support the view
that the trial court’s ruling was reasonable. Holden v. State, 201 S.W.3d
761, 763 (Tex. Crim. App. 2006).
6
Furthermore, when reviewing a trial court’s denial of a hearing on a
motion for new trial, an appellate court applies an abuse of discretion
standard of review. Gonzales v. State, 304 S.W.3d 838, 842 (Tex. Crim.
App. 2010); Reyes v. State, 849 S.W.2d 812, 815 (Tex. Crim. App. 1993).
The reviewing court should reverse only when the trial judge’s decision was
so clearly wrong as to lie outside the zone of reasonable disagreement. Id.
Review, however, is limited to the trial judge’s determination of whether the
defendant has raised grounds that are both undeterminable from the record
and reasonable, meaning they could entitle the defendant to relief. This is
because the trial judge’s discretion extends only to deciding whether these
two requirements are satisfied. If the trial judge finds that the defendant has
met the criteria, he has no discretion to withhold a hearing. In fact, under
such circumstances the trial judge abuses his discretion in failing to hold a
hearing. Gonzales, 304 S.W.3d at 842, citing Smith v. State, 286 S.W.3d
333, 339-40 (Tex. Crim. App. 2009).
MOTIONS FOR NEW TRIAL
Timely Filed
Texas Rule of Appellate Procedure 21.4 provides that a motion for
new trial must be filed within thirty days of the imposition of sentence.
TEX. R. APP. P. 21.4.
7
Appellant filed his notice of appeal on July 27, 2014. (CR II 14). On
Thursday, August 14, 2014 the undersigned counsel was appointed to
represent Appellant on his appeal. Id. Appellant filed his Motion for New
Trial on September 29, 2014 (CR II 3). On October 23, 2014 this court
granted Appellant’s Emergency Motion to Abate Appeal and Remand for
Hearing on Motion for New Trial and Permission to File Out of Time
Motion for New Trial (CR II 11, 12). Therefore, his motion for new trial
was timely filed.
Motion Timely Presented
Texas Rule of Appellate Procedure 21.6 states that “Defendant must
present the motion for new trial to the trial court within 10 days of filing it,
unless the trial court in its discretion permits it to be presented and heard
within 75 days from the date when the court imposes or suspends sentence in
open court.” TEX. R. APP. P. 21.6. Appellant timely presented his motion
through his attorney of record on September 29, 2014.
Live hearing versus affidavit
The right to a hearing on a motion for new trial is not absolute. Reyes,
849 S.W.2d at 815; Bruno v. State, 916 S.W.2d 4, 8 (Tex. App.—Houston
[1st Dist.] 1995, pet. ref’d). The trial court is authorized to receive evidence
“by affidavit or otherwise.” TEX. R. APP. P. 21.7. But a defendant has a
8
right to a hearing when the motion raises matters that are reasonable and
cannot be determined from the record. Wallace v. State, 106 S.W.3d 103
(Tex. Crim. App. 2003). This is to ensure a meaningful appeal by creating a
record that can be reviewed. Mendoza v. State, 935 S.W.2d 501, 503 (Tex.
App.—Waco 1996, no pet.)
If a defendant’s motion for new trial and supporting affidavit are
sufficient, a hearing on the motion is mandatory and a trial court that denies
an accused a hearing abdicates its fact-finding function and denies the
accused a meaningful appellate review. Torres v. State, 4 S.W 3d 295 (Tex.
App.—Houston [1st Dist.] 1999, no pet.); Reyes, 849 S.W.2d at 816, citing
McIntire v. State, 698 S.W.2d 652 (Tex. Crim. App. 1985). Additionally, a
defendant need not establish a prima facie case in order to get a hearing.
Wallace, 106 S.W.3d at 107-09. The motion and affidavits “must merely
reflect that reasonable grounds exist for holding that such relief could be
granted.” Id. This is because “the purpose of the hearing is for a defendant
to develop the issues raised in the motion for new trial.” Martinez v. State,
74 S.W.3d 19, 21 (Tex. Crim. App. 2002).
ANALYSIS
In his motion for new trial, unsworn statements, and handwritten letter
to the trial court, Appellant alleged that his plea was involuntary due to
9
ineffective assistance of counsel. (CR II 8-17, 27-29, 34,35). He explained
that on the day of trial, trial counsel engaged in the following deficient
conduct:
1. Failing to object to the changes in the indictment;
2. Withholding knowledge that the doctor who examined the
complaining witness was reluctant to testify for the State;
3. Telling him that life expectancy in prison was such that he would
die before serving the minimum sentence of 25 years if found guilty at trial;
4. Telling him, in front of his parents, that his parents would be dead
in 25 years, so if he did not plead guilty he would never see them alive
outside of prison;
5. Passing Appellant a note in the holdover from his parents wherein
his parents urged him to take the plea deal after the discussion about him
dying in prison and his parents dying before he served 25 years in TDCJ-ID;
and
6. Incorrectly advising him that at the PSIH he would have the
opportunity to cross-examine the complaining witness and present
mitigation evidence regarding the underlying offense. Id.
Appellant maintains that, but for each of the aforementioned instances
of deficient conduct, he would not have pled guilty and would have insisted
10
on going to trial. Id. Furthermore, none of the aforementioned issues are
determinable from the record and each, if true, would entitle Appellant to
relief, therefore he was entitled by law to a live evidentiary hearing on his
motion for new trial. Wallace, 106 S.W.3d 103.
Trial counsel filed an affidavit responding to the grounds on
Appellant’s motion for new trial. (Exhibit A). In her affidavit, trial counsel
makes some factual assertions that are controverted by the factual assertions
in Appellant’s unsworn declaration, but she does not address all of the
allegations. Id. Trial counsel offers no explanation in her affidavit about her
failure to object to the changes in the indictment. Id. She denies having
prior knowledge that the doctor who treated the complainant was
unavailable, or telling Appellant any such thing. Id. Trial counsel never
addresses any of the claims that she coerced Appellant to plead guilty by
telling him that he and his family would be dead in 25 years. Id.
Furthermore, she denies passing him a note from his parents wherein they
urged him to accept the plea offer. Finally, she says that the discussion
about what kind of evidence and cross-examination could be presented at the
PSIH did not take place until after the plea. Id.
At one point in the motion for new trial proceedings the trial court did
grant Appellant’s request for a live evidentiary hearing. (CR III 25). The
11
trial court must have believed that the requirements for a live evidentiary
hearing were satisfied otherwise it would not have bench warranted
Appellant from TDCJ-ID and set the case for a live hearing. (CR III 42).
But on December 16, 2014 Appellant was not brought to court according to
the bench warrant issued on November 25, 2014. Id. Three days later, when
Appellant was finally delivered to court, the trial court arbitrarily decided to
deny Appellant his live evidentiary hearing. (RR V 6). Nothing about the
motion for new trial and accompanying statement changed in those days.
Had the trial court conducted a live evidentiary hearing, Appellant
would have been able to cross-examine trial counsel on matters controverted
in the affidavit and the unsworn statements submitted to the court. By
denying his motion for new trial and his request for a live evidentiary
hearing, the trial court denied Appellant a meaningful appellate review and
the opportunity to create a full record for his appeal in the event the trial
court did go on to deny the motion for new trial. In so doing, the trial court
abused its discretion. Gonzales, 304 S.W.3d at 842; Torres, 4 S.W 3d 295;
Reyes, 849 S.W.2d at 816.
Furthermore, it was an abuse of discretion to deny Appellant’s motion
for new trial altogether. The trial court stated that it had an independent
recollection of the plea and the parties therefore it could make credibility
12
determinations and make a final decision on the motion for new trial based
on affidavits alone. (CR V 6). In support of this assertion, the trial court
stated: “And actually, unlike most cases, I had the opportunity – we had a
full hearing regarding issues of guilt/ innocence. I believe Mr. Conway
testified at that hearing. So, I’m very familiar with the attorney that was
representing the Defendant as well as the proceedings we are discussing this
morning.” Id. The significance of the trial court’s statement is that there is
no evidence of such a hearing anywhere in the record. Appellant did not
testify at any such hearing because one never took place, nor did he testify at
his PSIH. (RR III). Therefore, the trial court clearly did not have an
independent recollection of the plea or the parties. Clearly, the trial court
made its decision without any actual memory or knowledge of Appellant’s
case. This type of reckless decision-making is exactly the type of arbitrary
and unreasonable action that constitutes an abuse of discretion. Holden, 201
S.W.3d at 763.
CONCLUSION
Accordingly, Appellant respectfully asks that this court rule that the
trial court’s denial of his motion for new trial and request for a hearing was
an abuse of discretion and reverse and remand to the trial court for a new
trial.
13
APPELLANT’S SECOND POINT OF ERROR
APPELLANT’S PLEA WAS INVOLUNTARY DUE TO THE
INEFFECTIVE ASSISTANCE OF COUNSEL
Appellant’s plea was involuntary because of coercion, confusion, and
unconstitutionally ineffective assistance of counsel. But for trial counsel’s
erroneous advice and pressure from the trial court, Appellant would not have
pled guilty to the felony charge of assault family member second offender,
but would have insisted on going forward with his jury trial.
STANDARD OF REVIEW FOR INEFFECTIVE ASSISTANCE
OF COUNSEL AND INVOLUNTARY PLEA
A guilty plea must be freely, knowingly, and voluntarily entered.
TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). The
voluntariness of a plea is determined by the totality of the circumstances.
Munoz v. State, 840 S.W.2d 69, 74 (Tex. App. – Corpus Christi 1992, pet.
ref’d). An Appellant has a Sixth Amendment right to the effective
assistance of counsel in guilty-plea proceedings. Ex parte Reedy, 282
S.W.3d 492, 500-01 (Tex. Crim. App. 2009). To obtain relief for ineffective
assistance of counsel under Strickland v. Washington, Appellant must show
that his counsel’s performance was unconstitutionally deficient and “that
there is a ‘reasonable probability’ - one sufficient to undermine confidence
in the result - that the outcome would have been different but for his
14
counsel’s deficient performance.” Ex parte Chandler, 182 S.W.3d 350, 353
(Tex. Crim. App. 1999)(citing Strickland v. Washington, 466 U.S. 668, 694
(1984)).
Specifically, when a person “challenges the validity of a plea entered
upon the advice of counsel, contending that his counsel was ineffective, ‘the
voluntariness of the plea depends on (1) whether counsel’s advice was
within the range of competence demanded of attorneys in criminal cases and
if not, (2) whether there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty to the charged offense and would
have insisted on going to trial.’” Ex parte Moody, 991 S.W.2d 856, 857-58
(Tex. Crim. App. 1999)(quoting Ex parte Morrow, 952 S.W.2d 530, 536
(Tex. Crim. App. 1997)); Reedy, 282 S.W.3d at 500.
A criminal defense attorney “must have a firm command of the facts
of the case” before he or she may render reasonably effective assistance of
counsel. Ex parte Wellborn, 785 S.W.2d 391, 393 (Tex. Crim. App. 1990).
Counsel has a duty to provide advice to his client about what plea to enter,
and that advice should be informed by an adequate investigation of the facts
of the case. Reedy, 282 S.W.3d at 500. When counsel’s representation falls
below this standard, it renders any resulting plea involuntary. Id.
A claim of ineffective assistance of counsel must be determined upon
15
the particular circumstance of each individual case. Jackson v. State, 766
S.W.2d 504, 508 (Tex. Crim. App. 1985). Strategic or tactical
considerations are not considered deficient unless “the challenged conduct
was ‘so outrageous that no competent attorney would have engaged in it.’”
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)(quoting
Garcia v. State, 57 S.W.3d 436, 440 (Tex. Crim. App. 2001)). But when no
reasonable trial strategy could justify trial counsel’s conduct, the counsel’s
performance falls below an objective standard of reasonableness as a matter
of law. Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App.
2003)(citing Strickland, 466 U.S. at 690).
ANALYSIS
Repeated Admonishments
In Appellant’s case, trial counsel and the trial court pressured and
coerced him into making an involuntary plea. (CR II 8-17, 27-29, 34,35). In
his unsworn declaration Appellant alleges that the repeated admonishments
by the court led him to feel pressured and coerced into a guilty plea. Id. He
recalls being brought out of the hold over on at least four occasions for
admonishments by the trial court. Id. Appellant asserted his innocence and
his desire to go to trial every time, but the repeated admonishments from the
court eventually led him to feel that he had no choice but to plead guilty. Id.
16
Had the court refrained from repeatedly admonishing Appellant, he would
have felt free to go forward with his trial. Id. Appellant explains that his
trial counsel also pressured him into pleading guilty. Id. He explains that
trial counsel insisted he plead guilty despite his repeated assertions of
innocence and his desire to go to trial. Id. Trial counsel herself admits that
Appellant always expressed an unwavering desire to go to trial. Exhibit A.
She admits that she did not believe he would ever plead guilty. Id. Trial
counsel’s observation lends credence to Appellant’s declaration that his last
minute plea was made out of duress after being coerced by all of the
admonishments he received.
Erroneous PSIH Advice
If an attorney conveys erroneous information to his or her client, and
the client enters a plea of guilty based on that misinformation, the plea is
involuntary. See Fimberg v. State, 922 S.W.2d 205, 207 (Tex.App.-Houston
[1st Dist.] 1996 pet. ref’d). Furthermore, it has been held that a conviction
cannot be sustained when a plea of guilty has been motivated by significant
misinformation conveyed by the defendant’s counsel or some other officer
of the court. McGuire v. State, 617 S.W.2d 259, 261 (Tex. Crim. App.
1981); Messer v. State, 757 S.W.2d 820, 824 (Tex.App.—Houston [1st Dist.]
1988, pet. ref’d.).
17
Trial counsel gave erroneous advice that led to Appellant’s
involuntary plea. She assured Appellant that he could present text messages
from the complainant during his PSIH hearing to call her credibility into
question. (CR II 8-17, 27-29, 34,35). Trial counsel also assured Appellant
that he could cross-examine the complainant during the PSIH regarding
issues determinative of guilt or innocence. Id. Both of these assurances
were critical to Appellant entering a guilty plea, but neither of these things
actually happened during Appellant’s PSIH, nor were they legally required
to have happened. Id. These instances of misinformation alone are
sufficient to satisfy the standards set out in Fimberg, McGuire, and Messer.
Fimberg v. State, 922 S.W.2d at 207; McGuire, 617 S.W.2d at 261; Messer,
757 S.W.2d at 824.
Failing to Object
Appellant further alleges that when the State abandoned the impeding
breath language in the indictment on trial day he was surprised and wanted
additional time before trial to prepare a defense. (CR II 8-17, 27-29, 34,35).
Trial counsel failed to object to the abandonment of the impeding breath
language against Appellant’s wishes. Id. Appellant insists that the change
in the indictment surprised him and trial counsel’s failure to object
prejudiced him by denying him the opportunity to conduct a full
18
investigation and develop his defense. Id. Trial counsel’s failure to object
was another factor in the totality of the circumstances that led him to feel as
if he had no choice but to plead guilty. Id.
Withholding Important Case Information
Trial counsel withheld from Appellant that the doctor who examined
the complainant would not be testifying for the State until after his plea.
(CR II 8-17, 27-29, 34,35). According to Appellant, trial counsel waited
until after his plea to tell him that the doctor was no longer cooperative with
the State. Id. Had Appellant known this information, he would never have
pled guilty. Id. Instead, he would have requested a continuance to subpoena
the doctor as a defense witness. Id. According to Appellant, trial counsel
admitted that she withheld this information because she knew he would not
have pled guilty if he had known that the doctor was not going to testify at
trial. Id. This omission alone satisfies the standards set out in Fimberg,
McGuire, and Messer. Fimberg v. State, 922 S.W.2d at 207; McGuire, 617
S.W.2d at 261; Messer, 757 S.W.2d at 824. There is no reasonable trial
strategy that could justify trial counsel’s conduct, therefore counsel’s
performance fell below an objective standard of reasonableness as a matter
of law. Freeman v. State, 125 S.W.3d 505, 512 (Tex. Crim. App.
2003)(citing Strickland, 466 U.S. at 690).
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Life Expectancy Comments
Trial counsel told Appellant on his trial day that if he did not plead
guilty, he would die in prison because life expectancies are low for inmates
and his minimum punishment after trial would be 25 years TDCJ-ID. (CR
III 28). She also told him, in front of his parents, that his parents would be
dead by the time he served his sentence and that he would never see his
parents outside of prison. (CR III 27-31). Finally, trial counsel brought a
letter to Appellant from his parents urging him to plead guilty and not go to
trial. (CR II 8-17, 27-31, 34, 35). This too led to Defendant feeling coerced
and pressured to plead guilty. Id. There is no reasonable trial strategy that
could justify trial counsel’s conduct therefore counsel’s performance fell
below an objective standard of reasonableness as a matter of law. Freeman,
125 S.W.3d at 512.
CONCLUSION
The totality of trial counsel’s representation fell below the objective
standard of reasonableness demanded of reasonably competent counsel.
Strickland, 466 U.S. at 690. Such performance undermines confidence in
the voluntariness of Appellant’s guilty plea. Ex parte Chandler, 182 S.W.3d
at 353. Appellant would never have pled guilty had he not received such
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deficient representation from trial counsel, therefore his plea was rendered
involuntary by the ineffective assistance of counsel.
PRAYER
Appellant prays that this court finds that the trial court abused its
discretion in denying his motion for new trial and request for hearing, and
that his plea of guilty was involuntary due to ineffective assistance of
counsel. Accordingly, Appellant asks that this court reverse and remand this
cause to the trial court for a new trial.
Respectfully submitted,
/s/ Maite Sample
Attorney for Jason Conway
405 Main St. Ste. 950
Houston, TX 77002
SBN 24052072
(713) 909-9685, (713) 229-9996 (fax)
maite.m.sample@gmail.com
CERTIFICATE OF SERVICE
This is to certify that a copy of the foregoing instrument has been delivered
to the attorney for the State at the following email address:
curry_alan@dao.hctx.net on this the 4th of May 2015.
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CERTIFICATE OF COMPLIANCE
I certify that this document contains 5,282 words (counting all parts of the
document). The body text is in 14 point font.
/s/ Maite Sample
Attorney for Jason Conway
405 Main St. Ste. 950
Houston, TX 77002
SBN 24052072
(713) 909-9685, (713) 229-9996 (fax)
maite.m.sample@gmail.com
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EXHIBIT A
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