                                                                                   WR-75,812-04
                                                                     COURT OF CRIMINAL APPEALS
                                                                                     AUSTIN, TEXAS
                                                                  Transmitted 10/28/2015 12:11:17 PM
                                                                     Accepted 10/29/2015 9:00:21 AM
                                                                                      ABEL ACOSTA
                                 No. WR-75,812-04                                             CLERK

EX PARTE                                   §         IN THE COURT OF
                                                                   RECEIVED
                                                            COURT OF CRIMINAL APPEALS
                                           §                      10/29/2015
                                           §                   ABEL ACOSTA, CLERK
                                                     CRIMINAL APPEALS
                                           §
MICHAEL SHAWN SADLER                       §         OF TEXAS

             APPLICANT MICHAEL SADLER’S
     MEMORANDUM IN RESPONSE TO TRIAL COURT FINDINGS

      COMES NOW Michael Shawn Sadler, Applicant in the above-styled and

numbered cause, and submits this Memorandum in Response to the Trial Court’s

Findings.

                                    Introduction

      1.     Applicant raised numerous claims of ineffective assistance of counsel

both at the trial and appellate levels arising from his prosecution, conviction and

appeal for the offense of murder. This Court determined that the issues presented

are cognizable and directed the trial court to: (1) require Applicant’s trial and

appellate counsel to respond to the claims; (2) appoint counsel for Applicant if

indigent and if the court elects to hold a hearing; (3) make findings of fact and

conclusions of law regarding the performance of trial and appellate counsel; and (4)

make any additional findings of fact and conclusions of law deemed relevant and

appropriate to the disposition of the writ application.

      2.     The trial court appointed the undersigned counsel and conducted a live

hearing in this matter on June 29, 2015.
Memorandum in Response to Trial Court Findings                                 Page 1
      3.     After the hearing and considering the proposed findings of fact and

conclusions of law submitted by the parties, the trial court signed its findings of fact

and conclusions of law on July 14, 2015, and filed them on July 20, 2015.

      4.     The district clerk filed the trial court’s findings of fact and conclusions

of law with this Court in a supplemental record filed on July 24, 2015.

                     Erroneous Advice Regarding Plea Offer

      5.     In Applicant’s second ground, he alleges that trial counsel provided

ineffective assistance by giving erroneous advice regarding a plea offer made by the

State. Specifically, the State offered a 20-year plea offer for the lesser-included

offense of manslaughter. Applicant contends that trial counsel erroneously advised

him that manslaughter is an “aggravated” (i.e., 3g) offense that would require him

to serve one-half of his sentence before becoming eligible for parole. Applicant

stated in his original application filed with the district clerk on January 14, 2015 that

he “would have accepted the State’s offer” but for counsel’s erroneous advice.

(Habeas Application at 9)

      6.     This Court has recognized that a habeas applicant has a valid

ineffective-assistance claim due to erroneous advice regarding a plea offer if the

applicant shows “a reasonable probability that: (1) he would have accepted the

earlier offer if counsel had not given ineffective assistance; (2) the prosecution

would not have withdrawn the offer; and (3) the trial court would not have refused

Memorandum in Response to Trial Court Findings                                    Page 2
to accept the plea bargain.” Ex parte Argent, 393 S.W.3d 781, 784 (Tex. Crim. App.

2013).

          7.   Applicant testified at the live hearing that his trial counsel told him

(erroneously) that manslaughter was an aggravated offense for which he would have

to serve at least half his sentence before he would be eligible for parole. When

presented with the proper information regarding the fact that manslaughter is not a

3g offense, Applicant testified that “it’s a strong possibility” he would have accepted

the plea offer but for counsel’s erroneous advice. (Record of June 29, 2015 hearing

at 22).

          8.   The trial court made the following relevant findings (Findings Nos. 8,

9, 14, 15) regarding this claim:

          •    Applicant was on probation for possession of a controlled substance
               and there was a pending motion to revoke probation before the court.

          •    The State offered to reduce the charge from murder to the offense of
               manslaughter if Applicant would agree to twenty years incarceration,
               plus seven years incarceration in the possession of controlled substance
               case. As part of this offer, the sentences were to be stacked. The State
               does not dispute that it would have honored the plea offer.

          •    Applicant rejected the plea agreement with the understanding that he
               would have to serve at least one-half of his sentence before he would
               be considered for parole and he would have an additional seven-year
               sentence to serve on the controlled-substance case.

          •    Applicant testified at the hearing that he “would have considered” the
               State’s plea offer had Mr. Walker advised him that manslaughter was
               not an aggravated offense under Article 42.12, § 3g of the Code of
               Criminal Procedure. Applicant made no statement that there was a
Memorandum in Response to Trial Court Findings                                  Page 3
             reasonable probability he would have accepted the state’s plea
             offer if he had received different legal advice. Applicant insisted to
             Mr. Walker that he was innocent and Mr. Walker believed that he was
             not going to plead for that reason. There is no credible evidence that
             Applicant rejected the plea due to bad legal advice or that he would
             have accepted the plea offer if given different legal advice. (emphasis
             added)


.     9.     Regarding the last quoted finding (Finding No. 15), the trial court

appears to have been fixated on Applicant’s failure to quote the relevant case law

cited above regarding the showing necessary to obtain habeas relief because of

erroneous advice concerning a plea offer. Although Applicant did not recite the

precise words employed by this Court in Argent or similar cases regarding his

likelihood of accepting the plea offer had he been given sound advice, his testimony

clearly established a reasonable probability that he would have accepted the offer if

his attorney had given the correct information. Cf. Bryant v. State, 391 S.W.3d 86,

92 (Tex. Crim. App. 2012) (“a party “need not spout ‘magic words’” to preserve an

issue for appellate review). In addition, he expressly stated in his original habeas

application that he “would have accepted the State’s offer” but for trial counsel’s

erroneous advice. (Habeas Application at 9).

      10.    For these reasons, Finding No. 15 is not supported by the record.

      11.    Based on the evidence presented, Applicant established that he received

ineffective assistance of counsel because of counsel’s failure to properly advise him

that manslaughter is not a “3g offense” that would require him to serve a minimum
Memorandum in Response to Trial Court Findings                                Page 4
of half the agreed-upon sentence before becoming eligible for parole. Stated

differently, Applicant established a reasonable probability that he would have

accepted the manslaughter plea offer but for counsel’s erroneous advice.

      WHEREFORE, PREMISES CONSIDERED, Applicant Michael Shawn

Sadler requests that the Court grant the relief requested in the writ application, and

grant such other relief to which he may show himself justly entitled.

                                              Respectfully submitted,



                                                 /s/ Alan Bennett
                                              E. Alan Bennett
                                              Counsel for Applicant
                                              SBOT #02140700

                                              Sheehy, Lovelace & Mayfield, P.C.
                                              510 N. Valley Mills Dr., Ste. 500
                                              Waco, TX 76710
                                              Telephone: (254) 772-8022
                                              Fax: (254) 772-9297
                                              Email: abennett@slmpc.com

                               Certificate of Service

      The undersigned hereby certifies that a true and correct copy of this document

has been served by email on October 28, 2015 to counsel for the State, B.J. Shepherd,

220thda@gmail.com.



                                                 /s/ Alan Bennett
                                              E. Alan Bennett
Memorandum in Response to Trial Court Findings                                 Page 5
