                                                                                 ACCEPTED
                                                                            01-14-00885-CR
                                                                   FIRST COURT OF APPEALS
                                                                          HOUSTON, TEXAS
                                                                       4/9/2015 12:17:25 AM
                                                                        CHRISTOPHER PRINE
                                                                                     CLERK

                      NO. 01-14-00885-CR

                IN THE COURT OF APPEALS                      FILED IN
             FOR THE FIRST DISTRICT OF TEXAS          1st COURT OF APPEALS
                                                          HOUSTON, TEXAS
                                                      4/9/2015 12:17:25 AM
                                                      CHRISTOPHER A. PRINE
                     ABNER WASHINGTON                         Clerk
                          Appellant

                               v.

                     THE STATE OF TEXAS
                            Appellee


           On Appeal from Cause Number 1430059
       From the 248th District Court, Harris County, Texas



                    BRIEF FOR APPELLANT




ORAL ARGUMENT REQUESTED                   ALEXANDER BUNIN
                                          Chief Public Defender
                                          Harris County, Texas

                                          SARAH V. WOOD
                                          Assistant Public Defender
                                          Harris County, Texas
                                          State Bar Number 24048898
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002
                                          Phone: (713) 368-0016
                                          Fax: (713) 368-9278
                                          Sarah.Wood@pdo.hctx.net

                                          Counsel for Appellant
                     IDENTITY OF PARTIES AND COUNSEL



APPELLANT:                                 Abner Washington

TRIAL PROSECUTOR:                         Jill Foltermann
                                          Assistant District Attorney
                                          Harris County, Texas
                                          1201 Franklin, Suite 600
                                          Houston, Texas 77002

DEFENSE COUNSEL AT TRIAL:                 Denise Crawford
                                          1302 Waugh Drive, #242
                                          Houston, Texas 77019

PRESIDING JUDGE:                          Hon. Katherine Cabaniss
                                          248th District Court
                                          Harris County, Texas
                                          1201 Franklin, 17th floor
                                          Houston, Texas 77002

DEFENSE COUNSEL ON APPEAL:                Sarah V. Wood
                                          Assistant Public Defender
                                          Harris County, Texas
                                          1201 Franklin, 13th Floor
                                          Houston, Texas 77002




                                  2
                                                       TABLE OF CONTENTS



Identity of Parties and Counsel ............................................................................................ 2

Table of Contents .................................................................................................................. 3

Index of Authorities .............................................................................................................. 4

Statement of the Case ............................................................................................................ 5

Issues Presented...................................................................................................................... 5

Statement of Facts ................................................................................................................. 6

Summary of the Argument ................................................................................................... 9

Argument ............................................................................................................................... 11

        Issue One: The appellant was denied the right to counsel during the time for
        filing a motion for new trial. ....................................................................................... 11

        Issue Two: The trial court erred in failing to grant a hearing on a motion for
        new trial. ........................................................................................................................ 16

Prayer ..................................................................................................................................... 20

Certificate of Service and Compliance .............................................................................. 21




                                                                      3
                                                INDEX OF AUTHORITIES

Cases
Adams v. State, 911 S.W.2d 171 (Tex.App.—Corpus Christi 1995) ............................................11

Carranza v. State, 960 S.W.2d 76 (Tex. Crim. App. 1998). ............................................................18

Cooks v. State, 240 S.W.3d 906 (Tex. Crim. App. 2007) ......................................................... 11, 15

Daniels v. State, 63 S.W.3d 67 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) ..................17

Dominguez v. State, 441 S.W.3d 652 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ...............18

Dorsey v. State, 55 S.W.3d 227 (Tex. App.—Corpus Christi 2001, no pet.). ...............................12

Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim. App. 2009). .......................................................12

Ex parte Coleman, 455 S.W.2d 209 (Tex. Crim. App. 1970) ..........................................................14

Gideon v. Wainwright, 372 U.S. 335 (1963) .......................................................................................14

Green v. State, 264 S.W.3d 63 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd) ......................13

Hobbs v. State, 298 S.W.3d 193 (Tex. Crim. App. 2009)................................................................16

In re Bonilla, 424 S.W.3d 528 (Tex. Crim. App. 2014) ...................................................................18

Oldham v. State, 977 S.W.2d 354 (Tex. Crim. App. 1998); ............................................................12

Prudhomme v. State, 28 S.W.3d 114 (Tex. App.—Texarkana 2000, no pet.) ................................13

Reyes v. State, 849 S.W.2d 812 (Tex. Crim. App. 1993) .................................................................19

Smith v. State, 286 S.W.3d 333 (Tex. Crim. App. 2009).................................................................16

State v. Evans, 843 S.W.2d 576 (Tex. Crim. App. 1992) ................................................................16

Washington v. State, 363 S.W.3d 589 (Tex. Crim. App. 2012)........................................................12

Washington v. State, 394 S.W.3d 39 (Tex. App.—Houston [1st Dist.] 2012, no pet.) ................16

Statutes
Tex. Civ. Prac. & Rem. Code § 132.001. ........................................................................................18

                                                                4
                                    STATEMENT OF THE CASE

       Mr. Abner Washington was charged with the State Jail felony of possession of less

than a gram of cocaine, alleged to have been committed on May 29, 2014 (C.R. at 9). He

pled guilty in the absence of any agreement with the State and the trial court sentenced him

to 60 days in jail. (C.R. at 25).



                                      ISSUES PRESENTED

            Issue One: The appellant was denied the right to counsel during the
             time for filing a motion for new trial.


            Issue Two: The trial court erred in failing to grant a hearing on a
             motion for new trial.




                                            5
                                   STATEMENT OF FACTS

       Mr. Abner Washington was arrested and charged with possessing less than one

gram of cocaine on May 29, 2014. His bond was set at “No Bond.” (C.R. at 6-7). The

next day, he was appointed an attorney and set to appear in court on June 17. The reset

form contained the notation “Lab Report.” (C.R. at 8). Then on June 17, trial counsel

signed a “Joint List of Requested and Released Discovery,” indicating that the only item

requested and released was an offense report. (C.R. at 11-12).

       On that first court setting of June 17, appellant and his counsel enacted a waiver

of indictment and signed plea papers. The pre-printed form stated, “I intend to enter a

plea of guilty and the prosecutor will recommend that my punishment should be set at

‘WOAR.’”1 (C.R. at 15). The boilerplate further states, “I waive any right of appeal

which I may have should the court accept the foregoing plea bargain agreement.” (C.R.

at 15). At the bottom of the page, the judge placed her signature beneath a pre-printed

finding that the defendant pled guilty and that the court’s punishment did not exceed

the recommendation. (C.R. at 15).

       No reporter’s record was filed in this case. The judgment states, “Terms of Plea

Bargain: Without an Agreed Recommendation.” (C.R. at 25). The judgment further

indicates that appellant pled guilty and was sentenced to 60 days in jail. (C.R. at 25).

       At the bottom of the court’s judgment, it states, “Appeal Waived. No permission


1
  WOAR is a colloquialism for “without an agreed recommendation” and is hand-written in
the blank.
                                             6
to appeal granted.” (C.R. at 26). Then in the trial court’s certification of defendant’s

right of appeal, it states “the defendant has waived the right of appeal.” (C.R. at 22, 25).

No actual evidence of waiver appears in the record.

          Starting two days later, the fifty-three-year-old Mr. Washington began filing

hand-written, pro se motions and letters protesting his conviction and requesting legal

assistance. (C.R. at 31). He asked the court to reduce his sentence because he had

expected to be given “3 for 1 credit,” but had not—and because he had an abscessed

tooth which was not being treated. He moved the trial court to grant him 10 hours per

week in the Harris County Jail’s law library because he was only being allowed 30

minutes. (C.R. at 32). He filed a motion complaining that, because he is indigent, he

cannot afford to use the jail phones to contact potential witnesses for his defense. (C.R.

at 34).

          In a document titled “Motion to Alter, Amend, Open, or Vacate Judgment or

Conviction,” apparently filed June 26 (See C.R. at 3, 35), the appellant asked the trial

court to “vacate and set aside the felony conviction,” asserting innocence because the

pipe did not contain cocaine. (C.R. at 36). It was accompanied by a specific request for a

hearing and for an attorney. (C.R. at 38-39). A cordial letter directed to the clerk also

requested a hearing and stated he was acting pro se because it appeared trial counsel was

no longer assigned to his case. (C.R. at 42).

          In response, the trial court clerk, “T Jones,” responded that on July 7, “the court

took no action” and advised that the appellant was “currently being held on a parole
                                               7
violation. Please contact TDC.” (C.R. at 40).

       Then on July 2, the appellant addressed a polite letter directly to Judge Cabaniss,

informing her that his plea was involuntary and that he was requesting access to his trial

attorney and needed a hearing. (C.R. at 44).

       The appellant filed another motion stamped July 9, entitled “Post-Judgment

Hearing Conference Requested on Defendant’s Motions to Alter or Amend the

Judgment or Alternatively Request to Withdraw Guilty Plea Due to Misunderstanding

of Terms.” (C.R. at 48). The sworn pleading set out coherent facts alleging that his plea

was involuntary due to 1) unknown collateral consequences of losing disability benefits

2) a mistaken belief that his plea would result in a misdemeanor conviction, and 3) any

residue in the pipe should not sustain a conviction. (C.R. at 48-50).2

pled guilty less than two weeks later for sentencing from the court (C.R. at 79). No

reporter’s record was filed in this case.

       Next, the appellant submitted a motion file-stamped July 22, entitled

“Defendant’s Request and Notice of Appeal in a Plea Bargain and on Post-Judgment

Motions to Alter and Amend Judgment or Alternatively Withdraw Guilty Plea Due to

Lack of Understanding the Terms; and Ineffective Assistance of Counsel.” (C.R. at 53).

       In response, the clerk, T Jones, sent a letter to Mr. Washington in jail, stating



2 Like other documents within this clerk’s record, the pages of this motion are assembled out
of order and the reader should reference the hand-written numbering at the bottom of the
page.
                                              8
“Your NOTICE OF APPEAL was filed with the District Clerk and on 7/22/14, the

Court took no action.” The clerk further explained, “You cannot appeal a sentence after

it has been satisfied. Please consult an attorney.” (C.R. at 56).

       From jail, the appellant filed more requests for a hearing; this time to determine

his right to appeal. (C.R. at 58, 60). He even tried subpoenaing himself to be brought to

court. (C.R. at 63). He wrote a letter to the clerk responding and imploring him to

“please understand that I am trying to appeal the judgment…” (C.R. at 72). Appellate

counsel was finally appointed in September, three months after his conviction. (C.R. at

77).




                              SUMMARY OF THE ARGUMENT


       Mr. Washington had a constitutional right to the effective assistance of counsel

during the time for filing a motion for new trial. The record is sufficient to rebut any

presumption that appointed trial counsel continued to represent him because it was the

trial court’s erroneous position that he did not even have a right to appeal, as stated in

the trial court’s certification and as stated in the court clerk’s correspondence to Mr.

Washington that he could not appeal and should instead consult an attorney.

Additionally, the appellant filed numerous pleadings and letters stating that although he

was aware that trial counsel was no longer appointed to his case, he wished for her


                                             9
reappointment or at least the appointment of some other counsel and stating that his

attempts to contact trial counsel had been fruitless. It cannot be determined that this

constitutional violation was harmless beyond a reasonable doubt because he alleged

plausible grounds in motions for new trial that he wrote himself.

      If this Court were to find that Mr. Washington was not deprived of counsel, then

it should determine that the pleadings he filed himself entitled him to a hearing on a

motion for new trial. He alleged factual grounds which could entitle him to relief. His

pleading included a jurat under penalty of perjury and he met the presentment

requirement by addressing requests for a hearing in letters addressed directly to the

judge and the clerk and the clerk responded directly back to him.

      The only effective remedy in this case is to abate it back to the trial court so that

counsel can litigate a motion for new trial.




                                               10
                                         ARGUMENT

          Issue One: The appellant was denied the right to counsel during
          the time for filing a motion for new trial.
       The thirty-day time period for filing a motion for new trial is a critical stage in a

criminal proceeding, and a defendant has a constitutional right to counsel during that

period. Cooks v. State, 240 S.W.3d 906, 911 (Tex. Crim. App. 2007); see also Tex.R.App. P.

21.4(a) (providing thirty days for a defendant to file a motion for new trial). If a

defendant was represented by counsel at trial, there is a rebuttable presumption that trial

counsel continued to represent the defendant after trial. Cooks, 240 S.W.3d at 911. This

presumption is rebutted if the record affirmatively displays that the defendant was not

adequately represented by counsel during the time period for filing a motion for new

trial. Oldham v. State, 977 S.W.2d 354, 363 (Tex. Crim. App. 1998).

       In this case, it is clear from the record that Mr. Washington was not represented

by counsel after his conviction.

       First, the trial court erroneously held at the time of the plea that Mr. Washington

did not even have the right to appeal, as evidenced by its certification. (C.R. at 22). The

record must, of course, reflect with certainty that a waiver was in fact made knowingly

and voluntarily. Adams v. State, 911 S.W.2d 171, 172 (Tex.App.—Corpus Christi 1995)

(where record showed that appellant made oral waiver of appeal at guilty plea hearing

but also contained plea memorandum signed by appellant that suggested otherwise,

record fails to adequately show knowing and voluntary waiver of right to appeal). The


                                            11
only thing that could be construed as a waiver of appeal in this case is pre-printed

boilerplate language in the plea papers which states, “I waive any right of appeal which

I may have should the court accept the foregoing plea bargain agreement.” (C.R. at 15).

However, the record is clear that no plea bargain agreement existed. The pre-printed

form stated, “I intend to enter a plea of guilty and the prosecutor will recommend that

my punishment should be set at ‘WOAR.’”3 (C.R. at 15).

      When a defendant’s waiver of the right to appeal was entered before he or she

knew what the punishment would be, the waiver is ineffective. See Washington v. State, 363

S.W.3d 589 (Tex. Crim. App. 2012); Ex parte Delaney, 207 S.W.3d 794, 797 (Tex. Crim.

App. 2006). Another way a presentencing waiver can be enforceable without a plea

agreement is when the State has given some consideration for the waiver, such as a

consent in some other aspect of the case. Ex parte Broadway, 301 S.W.3d 694 (Tex. Crim.

App. 2009). None of those factors support a waiver in this case. Moreover, a defendant

who enters an open plea of guilty generally has an unlimited right to appeal. Dorsey v.

State, 55 S.W.3d 227, 234 (Tex. App.—Corpus Christi 2001, no pet.).

      Because the trial court pronounced that Mr. Washington could not appeal, then

appointed trial counsel would not have continued to have represented Mr. Washington

on any appeal.




3
  WOAR is a colloquialism for “without an agreed recommendation” and is hand-written in
the blank.
                                            12
       In many such cases, it may indeed be possible to speculate that perhaps the

defendant was effectively counseled on his post-conviction rights: “For all we know,

trial counsel told appellant about a panoply of appellate rights, rules, odds of success,

and left it up to appellant to contact counsel if appellant wanted to appeal.” Green v.

State, 264 S.W.3d 63, 70 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). In this case,

however, if trial counsel had correctly advised Mr. Washington about his appellate

rights, then surely counsel would have corrected the trial court’s certification. Counsel

also would have taken some action to correct the clerk’s letter to appellant that he

“cannot appeal a sentence after it has been satisfied.” (C.R. at 56). What is the role of

appellate counsel if not to assert the defendant’s rights in these circumstances? The only

reasonable conclusion is that counsel was absent.

       Additionally, Mr. Washington filed numerous post-trial pro se motions

requesting appointment of counsel. See e.g., Prudhomme v. State, 28 S.W.3d 114, 120 (Tex.

App.—Texarkana 2000, no pet.) (holding pro se filings rebutted presumption of

effective appellate counsel).

       On June 26, the appellant filed a motion stating, “Comes now Abner L.

Washington defendant pro se, and moves this honorable court to re-assign attorney

Denise M. Crawford to the case on post-judgment [matters].” (C.R. at 39). This

presupposes the fact that trial counsel was no longer assigned to his case. In response,

the clerk wrote to him that the “court took no action” because he had “completed his



                                            13
sentence.” (C.R. at 40). Also, the docket sheet shows that trial counsel submitted her fee

voucher to the court for Mr. Washington’s case on June 18. (C.R. at 79).

      In a letter to the clerk stamped July 7, Mr. Washington wrote, “The court

appointed counsel, Mrs. Denise Crawford may no longer be assigned to the case,

therefore, I am currently representing myself…” (C.R. at 42). In another motion

stamped July 9, appellant wrote, “Furthermore, my court appointed counselor Ms.

Crawford, although relieved from further duties, should not have ignored the

defendant’s attempts to communicate…” (C.R. at 47).

      On July 22, the clerk of the court responded to Mr. Washington by informing

him, “You cannot appeal a sentence after it has been satisfied. Please consult an

attorney.” (C.R. at 56). It should be noted that this action on its own—by an officer of

the court—represents a bold violation of the constitutional right to access the courts,

due process, and general rights of appeal and counsel. See In re Bonilla, 424 S.W.3d 528,

531 (Tex. Crim. App. 2014). It certainly causes one to wonder how many other less

persistent defendants have been shut down by the same course of action.

      The court did finally appoint counsel on September 15, three months after his

conviction. (C.R. at 77). These circumstances effectively rebut any presumption that

appointed trial counsel continued to represent Mr. Washington during the time for

preparing the motion for new trial.

      The failure to appoint this indigent inmate counsel on appeal after his timely

request violated his Fourteenth and Sixth Amendment rights under the United States
                                            14
Constitution. Gideon v. Wainwright, 372 U.S. 335 (1963); Ex parte Coleman, 455 S.W.2d 209,

210 (Tex. Crim. App. 1970).

       The Sixth Amendment to the United States Constitution provides defendants

with a right to the effective assistance of counsel during all critical stages of a trial and

appeal. U.S. Const. amend VI; see also Tex. Const. art. I, § 10; Trevino v. State, 565 S.W.2d

938, 940 (Tex. Crim. App. 1978) (explaining that “appointment of counsel for an

indigent is required at every stage of a criminal proceeding where substantial rights of a

criminal accused may be affected ....”)

       The denial of counsel during the time period for filing a motion for new trial is

an error of constitutional dimension. Accordingly, this Court must remand unless it can

be determined the error was harmless beyond a reasonable doubt. Cooks v. State, 240

S.W.3d 906, 911 (Tex. Crim. App. 2007). If an appellant alleges on appeal a “facially

plausible claim” that could have been alleged in a motion for new trial, the error is not

harmless beyond a reasonable doubt. Id. at 912 (citing Prudhomme, 28 S.W.3d at 120–21).

Because appellant’s pro se motions allege reasonable factual grounds, the error is not

harmless in this case and the proceedings should be restored in the trial court for

appellant to pursue an appeal with the assistance of counsel.




                                             15
          Issue Two: The trial court erred in failing to grant a hearing on a
          motion for new trial.
       In the event that this Court does not find a Sixth Amendment violation, then it

should determine that Mr. Washington’s efforts as an unrepresented indigent inmate

effectively preserved his right to a hearing on a motion for new trial.

       As established by the Court of Criminal Appeals, the purposes of a new trial

hearing are (1) to determine whether the case should be retried or (2) to complete the

record for presenting issues on appeal. Such a hearing is not an absolute right. But a trial

judge abuses his discretion in failing to hold a hearing if the motion and accompanying

affidavits (1) raise matters which are not determinable from the record and (2) establish

reasonable grounds showing that the defendant could potentially be entitled to relief.

Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009).

       The appellant timely filed a motion for new trial, entitled “Post-Judgment

Hearing Conference Requested on Defendant’s Motions to Alter or Amend the

Judgment or Alternatively Request to Withdraw Guilty Plea Due to Misunderstanding

of Terms.” (C.R. at 48). Such a document is considered “functionally indistinguishable”

from a motion for new trial “irrespective of the label or terms used in the motion.” State

v. Evans, 843 S.W.2d 576, 577 (Tex. Crim. App. 1992).

       To be entitled to a hearing, a new-trial motion must be supported by an affidavit

specifically setting out the factual basis for the claim. If the affidavit is conclusory, is

unsupported by facts, or fails to provide requisite notice of the basis for the relief


                                             16
claimed, no hearing is required. But a supporting affidavit need not establish a prima

facie case, or even reflect every component legally required to establish relief. Washington

v. State, 394 S.W.3d 39, 43 (Tex. App.—Houston [1st Dist.] 2012, no pet.) (citing Smith v.

State, 286 S.W.3d 333, 339 (Tex. Crim. App. 2009). Rather, it is sufficient if a fair reading

of the affidavit gives rise to reasonable grounds in support of the claim. Id.

       The substance of appellant’s motion sets out coherent facts alleging that his plea

was involuntary due to 1) previously unknown collateral consequences of the plea 2) a

mistaken belief that his plea would result in a misdemeanor conviction, and 3) the fact

that any residual substance in the drug paraphernalia should not sustain a conviction for

cocaine. (C.R. at 48-50). These allegations amount to reasonable grounds—outside of

the record—to support the motion and therefore requiring a hearing. See e.g., Daniels v.

State, 63 S.W.3d 67 (Tex. App.—Houston [14th Dist.] 2001, pet. ref'd) (holding hearing

required where defendant described reasons why he would not have pled true to state’s

allegations if trial counsel had correctly advised him).

       Moreover, the appellant’s verification “under penalty for perjury” meets the

additional technical requirements. To obtain an evidentiary hearing on a motion for new

trial, it must be accompanied by an affidavit or verification which is permitted to be in

substantially the same form as set out in Tex. Civ. Prac. & Rem. Code § 132.001. Green v.

State, 264 S.W.3d 63, 67 (Tex. App.—Houston [1st Dist.] 2007, pet. ref'd). “[A]n

unsworn declaration may be used in lieu of a written sworn declaration, verification,



                                             17
certification, oath, or affidavit required by statute ....” Tex. Civ. Prac. & Rem. Code §

132.001(a).

         Such a declaration must be in writing and must be subscribed as true under

penalty of perjury. A template jurat appears in the code. The statute requires a jurat to

appear in “substantially” the same form as the template jurat before an unsworn

declaration becomes operative. Id. As this Court recently held, “The inclusion of the

phrase ‘under penalty of perjury’ is the key to allowing an unsworn declaration to

replace an affidavit.” Dominguez v. State, 441 S.W.3d 652, 658 (Tex. App.—Houston [1st

Dist.] 2014, no pet.). Therefore, the simple jurat at the bottom of page three of

appellant’s motion is sufficient.

         Appellant also substantially complied with the presentation requirement under

Tex. Rule App. Proc. 21.6. The term presentment is neither legislatively defined nor is it

defined in the Texas Rules of Appellate Procedure. The Court of Criminal Appeals has

stated, “[T]he term ‘present’… means the record must show the movant for a new trial

sustained the burden of actually delivering the motion for new trial to the trial court or

otherwise bringing the motion to the attention or actual notice of the trial court. This

may be accomplished in several ways such as, for example, obtaining the trial court's

ruling on a motion for new trial.” Carranza v. State, 960 S.W.2d 76 (Tex. Crim. App.

1998).

         The presentment requirement expresses a general policy that a trial court should

not be reversed on a matter that was never brought to its attention. Likewise, it is
                                            18
incumbent upon a trial court not to shield itself from communications with indigent

prisoners. Trial courts have a duty to “insure that inmate access to the courts is

adequate, effective, and meaningful.” In re Bonilla, 424 S.W.3d 528, 531 (Tex. Crim. App.

2014). In this case, appellant did everything possible as an indigent person in custody to

notify the trial court of his filings. To hold otherwise would result in a discriminatory

application of the law in violation of due process, equal protection, and the

constitutional right of access to the courts.

      While Texas case law has shed little light on what exactly presentation entails, the

Court of Criminal Appeals consistently has held that the filing of a motion for new trial

alone is not sufficient to show presentment. See Reyes v. State, 849 S.W.2d 812, 815 (Tex.

Crim. App. 1993). Even though he was in custody and could only communicate with the

court via mail, Mr. Washington did take further steps past simply filing the motion.

      First, he accompanied his motions with a letter addressed directly to the court

clerk by name, stating, “Dear Mister Jones, I need you to please set the enclosed motion

for a hearing on the 10th of July 2014…” (C.R. at 46). Second, a letter addressed directly

to the judge was also file-stamped the same day, stating, “Dear Judge Cabanest [sic],

Please excuse my unethical correspondence being addressed directly to you, but I need

to get your attention regarding my guilty plea…” (C.R. at 44). Third, the docket sheet

contains notations on July 9th stating, “PROSE RQ HRG” and “PROSE RQ

APPEAR.” (C.R. at 79-80).



                                            19
         The clerk responded directly to appellant at least twice, informing him that the

court “took no action” and finally that he could not appeal because he had served his

sentence. (C.R. at 40, 56). As an indigent inmate, the appellant acted with an impressive

display of persistent professionalism and graciousness in his attempts to communicate

with the court, despite the frustrating obstacles he encountered at every turn. The trial

court abused its discretion in not holding a hearing on Mr. Washington’s motion for new

trial.

                                              PRAYER


         FOR THESE REASONS, the Appellant respectfully prays that this Honorable Court abate or

remand this case for further proceedings consistent with the appellant’s right to counsel on appeal

and litigation of a motion for new trial or such other relief as this Court sees fit.



                                                     Respectfully submitted,

                                                     ALEXANDER BUNIN
                                                     Chief Public Defender
                                                     Harris County Texas


                                                     /s/ Sarah V. Wood
                                                     SARAH V. WOOD
                                                     Assistant Public Defender
                                                     Harris County Texas
                                                     1201 Franklin, 13th Floor
                                                     Houston Texas 77002
                                                     (713) 368-0016 (phone)
                                                     (713) 368-9278 (fax)
                                                     Texas Bar Number 24048898
                                                     Sarah.Wood@pdo.hctx.net


                                                20
                       CERTIFICATE OF SERVICE AND COMPLIANCE


I certify that a copy of this Brief for Appellant has been served upon the Harris County District

Attorney's Office by electronic delivery to Alan Curry via the e-file system and that this brief has

3,651 words according to the computer program used to draft it.


                                                    /s/ Sarah V. Wood
                                                    SARAH V. WOOD
                                                    Assistant Public Defender




                                               21
