Order issued April 29, 2013




                                    In The

                              Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                              NO. 01-12-00649-CR
                           ———————————
                     SACAJAWEA WARREN, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



                   On Appeal from the 338th District Court
                           Harris County, Texas
                       Trial Court Case No. 1301748


                          MEMORANDUM ORDER

      Appellant, Sacajawea Warren, pleaded guilty to the offense of burglary of a

building with intent to commit theft, without an agreed recommendation regarding

punishment. Appellant further pleaded “true” to two felony enhancement

paragraphs. A pre-sentencing investigation was conducted. The trial court found
appellant guilty, found the enhancements true, and assessed punishment of

confinement for two years. Appellant filed a motion for new trial, asserting that

her plea was involuntary because her counsel was ineffective and seeking to

withdraw her plea and proceed to trial. The trial court denied appellant’s motion

for new trial without a hearing. Appellant moves to abate the appeal for a hearing

on her motion for new trial. We grant the motion, abate the appeal, and remand the

case to the trial court for a hearing on appellant’s motion for new trial.

      We may abate an appeal and remand the case to the trial court for a hearing

on a timely-filed motion for new trial if (1) a hearing was requested, (2) the motion

was timely presented to the trial court, and (3) the appellant was entitled to a

hearing, that is, the matters raised in the motion and accompanying affidavit (A.)

are not determinable from the record and (B.) “reflect that reasonable grounds exist

for holding that such relief could be granted.” Wallace v. State, 106 S.W.3d 103,

108 (Tex. Crim. App. 2003); Green v. State, 264 S.W.3d 63, 66–67 (Tex. App.—

Houston [1st Dist.] 2007, pet. ref’d); Reyes v. State, 82 S.W.3d 351, 353 (Tex.

App.—Houston [1st Dist.] 2001, order). The standard of review is abuse of

discretion. Reyes, 82 S.W.3d at 353.




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      First, the clerk’s record reflects that appellant timely filed a motion for new

trial and affidavit. See TEX. R. APP. P. 21.4. In addition, appellant requested a

hearing on her motion for new trial. 1 See Green, 264 S.W.3d at 66–67.

      Second, because the record shows that the trial court ruled on appellant’s

motion for new trial the same day it was filed, the record reflects that appellant

timely presented the motion to the trial court. See TEX. R. APP. P. 21.6; Green, 264

S.W.3d at 67.

      Finally, we consider whether the motion for new trial and accompanying

affidavit raise matters that (A.) are not determinable from the record and (B.)

reflect that reasonable grounds exist for holding that such relief could be granted.

See Wallace, 106 S.W.3d at 108.

      (A.) Matters Not Determinable from the Record

      We first consider whether appellant’s motion for new trial and

accompanying affidavit raise matters that are not determinable from the record.

See id.


1
      In her motion for new trial, appellant stated that a hearing must be held “before the
      75th day after the sentence, which is August 29, 2012, or this motion is overruled
      by operation of law.” In addition, the motion states that appellant seeks relief on
      the basis of the written reasons, as well as “other reasons that may arise on the
      hearing.” Appellant further provided spaces in the motion for the trial court to
      complete in setting a hearing. The form is blank. However, when, as here, the
      trial court has ruled on the motion for new trial itself, the record need not reflect a
      ruling on the request for a hearing. See Torres v. State, 4 S.W.3d 295, 296–98
      (Tex. App.—Houston [1st Dist.] 1999, order).

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      In her motion for new trial,2 appellant alleged that, at approximately 9:30

p.m. on the date of the alleged offense, she, a licensed real estate agent, and her

husband went to a house to inspect it prior to signing a contract to purchase the

house. Appellant had purchased a key from her broker, as required. Appellant

alleged that, as they were leaving the house, a Houston Police officer intercepted

them. Appellant asserted that they tried to explain their purpose at the house, but

that the officer arrested them. Appellant was charged with burglary with intent to

commit theft for having attempted to steal a stove, to which she pleaded guilty

without an agreed recommendation.

      Appellant further asserted in her motion for new trial that, prior to entering

her plea, her trial counsel had encouraged her to go to trial. On April 9, 2012,

according to appellant, after numerous trial re-settings, appellant appeared with

counsel, expecting to pick a jury and proceed to trial. Appellant asserted that

counsel seemed “overly concerned about his personal divorce case which was

pending in the Harris County Family Court and was scheduled for trial.” Counsel

requested a continuance on this basis; however, the trial court denied the

2
      By affidavit appended to her motion for new trial, appellant swore to the specific
      facts she alleged in her motion. Her affidavit, coupled with the motion, provides
      the requisite notice of the basis for the relief claimed. See Hobbs v. State, 298
      S.W.3d 193, 200–01 & n.32 (Tex. Crim. App. 2009); see also Reyes v. State, 849
      S.W.2d 812, 816 (Tex. Crim. App. 1993) (stating that “the motion for new trial
      or affidavit must reflect that reasonable grounds exist for holding that such relief
      could be granted”).

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continuance and ordered counsel to return on April 10, 2012, ready to proceed.

Appellant alleged that, thereafter, counsel’s demeanor changed, and that,

“[w]hereas prior in time he had counseled [appellant] to refuse to plea to a lesser

charge of trespass, he was now stampeding [her] into pleading guilty to the

burglary charge without a recommendation.” Appellant alleged that counsel stated

“that he would not be able to cross examine the police and that she would be found

guilty and go directly to jail.” Appellant asserts that counsel “further stated that if

[I] pleaded guilty without an agreed recommendation and with a presentence

investigation, . . . I would get probation.” Appellant asserted that she felt she had

no choice but to plead guilty.      After which, the trial court sentenced her to

confinement for two years.

      Thus, appellant complains that her plea was involuntary because she was

denied effective assistance of counsel. Specifically, appellant alleges that counsel

coerced her into pleading guilty without an agreed recommendation by erroneously

telling her that, if she pleaded guilty, she would get community supervision and by

telling her that he would refuse to cross-examine the police officer.

      A defendant’s election to plead guilty is not voluntary if it is based on

erroneous advice of counsel. See Ex parte Battle, 817 S.W.2d 81, 83 (Tex. Crim.

App. 1991). Appellant’s motion for new trial raises matters not determinable from

the record because, without a hearing on appellant’s motion for new trial, we

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cannot determine the content of the conversations between appellant and counsel

leading up to appellant’s plea. See Wallace, 106 S.W.3d at 108; Reyes, 82 S.W.3d

at 353–54 (holding that, without hearing on motion for new trial, court could not

“determine the content of the conversations” between defendant and his lawyer and

could not evaluate claim that defendant received ineffective assistance of counsel

resulting in involuntary plea).

      (B.) Reasonable Grounds for Relief

      Next, we determine whether appellant’s motion for new trial and affidavit

reflect that reasonable grounds exist for holding that relief on appellant’s claim of

ineffective assistance of counsel could be granted. See Wallace, 106 S.W.3d at

108. “To do so, the appellant must allege facts that would reasonably show that

[her] counsel’s representation fell below the standard of professional norms and

that there is a reasonable probability that, but for [her] counsel’s conduct,”

appellant would not have pled guilty and would have insisted on going to trial.

Smith v. State, 286 S.W.3d 333, 340–41 (Tex. Crim. App. 2009) (applying

Strickland v. Washington, 466 U.S. 668, 687–88, 694, 104 S.Ct. 2052, 2064, 2068

(1984)).

      Appellant complains that her counsel was ineffective because he coerced her

into pleading guilty without an agreed recommendation by erroneously telling her

that, if she pleaded guilty, she would get community supervision. A guilty plea is

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not rendered involuntary simply because an attorney may have raised an erroneous

expectation of community supervision or the sentence exceeds what was expected,

even if the expectation was raised by the defendant’s attorney. See West v. State,

702 S.W.2d 629, 633 (Tex. Crim. App. 1986). Hence, appellant’s motion for new

trial does not establish reasonable grounds for relief on this point. See Hernandez

v. State, 84 S.W.3d 26, 33 (Tex. App.—Texarkana 2002, pet. ref’d) (concluding

that trial court did not abuse its discretion by failing to conduct hearing on motion

for new trial in which appellant alleged that his open plea was based on counsel’s

erroneous assurances of community supervision, because appellant stated in record

that he understood his plea, that it was not induced by promises, and that trial court

would consider full range of punishment); Messer v. State, 757 S.W.2d 820, 826

(Tex. App.—Houston [1st Dist.] 1988, pet. ref’d) (holding that unjustified

assurances made by trial counsel regarding likelihood defendant would be given

community supervision did not render appellant’s guilty plea involuntary, given

that defendant was informed court would consider entire punishment range and

defendant stated in open court that his guilty plea was not induced by any

promises).

      Appellant further complains, however, that her counsel was ineffective

because he coerced her into pleading guilty without an agreed recommendation by

telling her that he would refuse to cross-examine the police. A decision not to

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cross-examine a witness can constitute sound trial strategy. Dannhaus v. State, 928

S.W.2d 81, 88 (Tex. App.—Houston [14th Dist.] 1996, pet. ref’d). An ineffective

assistance of counsel claim cannot be based on a difference of opinion concerning

strategy. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim. App. 2002).

      Here, however, in her motion for new trial, appellant alleged fact issues

regarding the circumstances at the house on the night of the incident and alleged

that counsel refused to cross-examine the police officer who intercepted and

arrested appellant at the house. A failure or refusal to cross-examine any of the

State’s witnesses can constitute deficient performance by counsel. See Wenzy v.

State, 855 S.W.2d 47, 50–51 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d)

(concluding that counsel’s representation of defendant, including that counsel did

not cross-examine any of the State’s witnesses, was constitutionally deficient in

that counsel did not play adversarial role contemplated by Sixth Amendment).

“An attorney who represents a criminal defendant is bound by professional duty to

present all available evidence and arguments in support of his client’s position, and

to contest with vigor all adverse evidence and views.” Id. (quoting Thomas v. State,

550 S.W.2d 64, 68 (Tex. Crim. App. 1977), quoting Gagnon v. Scarpelli, 411 U.S.

778, 787, 93 S.Ct. 1756, 1762 (1973)). Hence, appellant alleged facts in her

motion for new trial and affidavit that reflect that reasonable grounds exist for

holding that relief could be granted. See Wallace, 106 S.W.3d at 108.

                                         8
      As to the prejudice prong, appellant must show a reasonable probability that,

absent counsel’s conduct, she would have insisted on going to trial, that is, that “a

particular proceeding would have occurred.” See Johnson v. State, 169 S.W.3d

223, 231 (Tex. Crim. App. 2005) (discussing defendant who contends that his

guilty plea was involuntary because of ineffective assistance of counsel). Appellant

was not required to show that the case would have received a more favorable

disposition had she gone to trial. Id. We consider the circumstances surrounding

the plea. Ex parte Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999). “The test

is objective; it turns on what a reasonable person in the defendant’s shoes would

do.” Ex parte Ali, 368 S.W.3d 827, 833 (Tex. App.—Austin 2012, pet. ref’d).

      Appellant asserts that trial had been set and reset numerous times before she

appeared with counsel for trial on April 9, 2012. Appellant asserts that, on that

day, she expected to pick a jury and proceed to trial. However, counsel asked for a

continuance based on his personal divorce case, which the trial court denied, and

the trial court instructed appellant and counsel to appear the next day, ready for

trial. Appellant alleged that, after the trial court refused the continuance, counsel’s

demeanor changed toward her, and he told her that he would not cross-examine the

police. The next day, appellant pleaded guilty without an agreed recommendation.

Appellant alleged facts in her motion for new trial that demonstrate a reasonable

probability that she would have insisted on going to trial, but for the alleged

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conduct of counsel. See Johnson, 169 S.W.3d at 231.

      In sum, appellant’s motion for new trial raises matters not determinable from

the record and reflects that reasonable grounds exist for holding that such relief

could be granted. See Wallace, 106 S.W.3d at 108 (stating that motion need not

establish a prima facie case for a new trial; rather, it “must merely reflect that

reasonable grounds exist for holding that such relief could be granted”); Reyes, 82

S.W.3d at 353–54. We conclude that appellant was entitled to a hearing on her

motion for new trial.

      Accordingly, we abate this appeal and remand the case to the trial court to

conduct an evidentiary hearing within 60 days from the date of this order.3 See

Thomas v. State, 286 S.W.3d 109, 117 (Tex. App.—Houston [14th Dist.] 2009,

order). If the trial court grants the motion for new trial, appellant’s appeal will be

dismissed. If the motion is overruled, the reporter’s record is to be supplemented.

Any ruling is to be included in a supplemental clerk’s record. The reporter’s

record and supplemental clerk’s record must be filed in this Court within 30 days

after the date of the hearing. The appeal is abated, treated as a closed case, and

removed from this Court’s active docket. The appeal will be reinstated on the



3
      See TEX. R. APP. P. 44.4 (providing that if trial court’s error or failure to act
      prevents proper presentation of case on appeal and trial court can correct its error
      or failure to act, court of appeals “must not affirm or reverse,” but “must direct the
      trial court to correct the error”).
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Court’s active docket when the reporter’s record and supplemental clerk’s record

have been filed in this Court.



                                                /s/ Laura Carter Higley
                                                Justice

Panel consists of Chief Justice Radack and Justices Higley and Brown.

Do not publish. TEX. R. APP. P. 47.2(b).




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