                                                                 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).


                                                                               19
                        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




                                                                                 20
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.




                                                                               21
                   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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