                                                                                      ACCEPTED
                                                                                  01-14-01020-CR
                                                                       FIRST COURT OF APPEALS
                                                                               HOUSTON, TEXAS
                                                                             6/12/2015 1:51:45 PM
                                                                            CHRISTOPHER PRINE
                                                                                           CLERK

                            NO. 01-14-01020-CR
                      IN THE FIRST COURT OF APPEALS
                             HOUSTON, TEXAS                      FILED IN
                                                          1st COURT OF APPEALS
                                                              HOUSTON, TEXAS
                                                          6/12/2015 1:51:45 PM
                         SIMMIE JAMES COLSON III          CHRISTOPHER A. PRINE
                                                                  Clerk
                                                   APPELLANT,
                                    V.


                            THE STATE OF TEXAS

                                                   APPELLEE.


MOTION TO REMAND THIS CASE TO THE TRIAL COURT TO CONDUCT AN EVIDENTIARY
HEARING TO CREATE A RECORD TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF
                       COUNSEL ON DIRECT APPEAL




                     APPEAL FROM THE 185TH JUDICIAL
                 DISTRICT COURT OF HARRIS COUNTY, TEXAS




                             DIOGU KALU DIOGU II, LL.M.
                             DIOGU LAW FIRM
                             P. O. BOX 994
                             FULSHEAR, TEXAS 77441
                             Diogu.diogu.law.firm@gmail.com
                             Phone (713) 791 3225
                             Fax (832) 408 7611



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                   APPELLANT SIMMIE JAMES COLSON III
MOTION TO REMAND THIS CASE TO THE TRIAL COURT TO CONDUCT AN EVIDENTIARY
HEARING TO CREATE A RECORD TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF
                       COUNSEL ON DIRECT APPEAL

       TO THE HONORABLE JUDGE OF THE SAID COURT:

       COMES NOW. APPELLANT SIMMIE JAMES COLSON III, through undersigned

counsel, respectfully urges the Court to remand this appeal to the District Court to

enable the Appellant develop appellate record to raise material fact on issues relating to

ineffective assistance of Counsels through an evidentiary hearing and the show the

Court the following:

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                                      INTRODUCTION

       On or about June 08th, 2015, the Appellant employed the services of the

undersigned attorney and requested among that among other things that he amend the

appellant’s Brief to include issues relating to ineffective assistance of counsel.


       In doing so he stated that the initial lawyer he hired Attorney Maverick Ray, told

him that he had spoken with the probation department, as well as the district attorney

and judge and they were going to throw this case out based on length time since

offense occurred as well as what he has been doing for the community, that after

turning himself in Attorney Ray’s story changed. And that when they appeared before

the court instead of the case being thrown out, the Appellant was offered six months jail




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time by Judge Susan Brown who presided over the case in Court 185th District Court of

Harris County, Texas.

       He also stated that thereafter he hired Attorney Overstreet, who he claimed

based on his presentation before Judge Brown angered the Judge so much that the

Judge raised the six Jail time she had previously offered him to seven months.

       Clearly, the record on appeal is void of any material facts relating to and including

the allegation he made in this motion that formed and will form the basis to raise

ineffective Assistance of Counsel in direct Appeal.

       To fill that void, the Appellant asks the Court to remand the case to the 185th

Judicial District court of Harris County solely to enable him develop the required record

in an evidentiary hearing.

                                            II
                         INEFFECTIVE ASSISTANCE OF COUNSEL

       Although the constitutional right to counsel ensures the right to reasonably

effective counsel, it does not guarantee errorless counsel whose competency or

accuracy of representation is to be judged by hindsight. Rylander v. State, 101 S.W.3d

107, 110 (Tex. Crim. App. 2003). To prove ineffective assistance of counsel, Colson must

show that (1) her first counsel’s performance fell below an objective standard of

reasonableness; and (2) there is a reasonable probability that, but for counsel’s error,

the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668,

687 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); Jaynes v. State,

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216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). A failure to make a

showing under either prong of the Strickland standard defeats a claim of ineffective

assistance of counsel. Rylander, 101 S.W.3d at 110-11.

       Appellant must prove his claim of ineffective assistance of counsel by a

preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim.

App. 1991). Courts’ review of defense counsel’s representation is highly deferential, and

the Courts normally presume that Trial Counsel’s actions fell within the wide range of

reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.

App. 2002). Courts will not second-guess legitimate tactical decisions made by trial

counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008). Allegations of

ineffective assistance of counsel must be firmly founded in the record. Thompson v.

State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record must sufficiently

demonstrate that the acts or omissions of counsel were not the product of strategic

decisions; if the record is silent as to any explanation for counsel’s actions, a reviewing

court will find that the defendant has failed to overcome the strong presumption of

reasonable assistance “unless the challenged conduct was so outrageous that no

competent attorney would have engaged in it.” Morales, 253 S.W.3d at 696-97 (quoting

Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); see Thompson, 9

S.W.3d at 814; Jaynes, 216 S.W.3d at 851.




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       These demanding standards are virtually impossible to meet when no proper

evidentiary record was developed at the hearing on a motion adjudicate guilt and

revoke his community supervision.” Chavero v. State, 36 S.W.3d 688, 701 (Tex. App.–

Corpus Christi 2001, no pet.). See also, Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911

(2013), and Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012),

       The Martinez recognized a limited exception to procedural default. See Martinez,

132 S. Ct. at 1318-1319, 1320-1321. In Trevino, the United States Supreme Court held

that Martinez, applies in Texas because "the Texas procedural system—as a matter of its

structure, design, and operation—does not offer most defendants a meaningful

opportunity to present a claim of ineffective assistance of trial counsel on direct

appeal." 133 S. Ct. 1911, 1921.

       All facts recited in this motion are within the personal knowledge of the counsel

signing this motion, therefore no verification is necessary under Rule of Appellate

Procedure 10.2.

                               CONCLUSION AND PRAYER

       For the reasons set forth above, Appellant respectfully urges this Court to

remand the case to the trial Court and allow him to fully develop the factual claims that

supports his claim of ineffective assistance of Counsel which was not raised in his brief

because the lawyers who filed the brief may have had a conflict of interest and as such

did not raise the issue on direct appeal.



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       As such the Appellant requests that an evidentiary hearing be scheduled to

resolve factual issues and develop a record to enable this court to properly review the

issues of ineffective assistance of his trial counsels on Appeal.

Respectfully submitted,


                                           DIOGU LAW FIRM
                                           P. O. Box 994
                                           Fulshear, Texas 77441
                                           Tel: (713) 791 3225
                                           Fax: (832) 408-7611

                                           By:/S/ Diogu Kalu Diogu II, LL.M
                                              Diogu Kalu Diogu II, LL.M.
                                              State Bar No. 24000340
                                              diogu.diogu.law.firm@gmail.com
                                              Attorney for Appellant

                                 CERTIFICATE OF SERVICE

       I certify that a true copy of the request for evidentiary hearing was served on the

Harris County District Attorney in accordance with the Texas Rules of Appellant

Procedure on June 12th 2015 by fax.


                                           By:/S/ Diogu Kalu Diogu II, LL.M
                                              Diogu Kalu Diogu II, LL.M.
                                              State Bar No. 24000340
                                              diogu.diogu.law.firm@gmail.com
                                              Attorney for Appellant




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