                                                                ACCEPTED
                                                            14-15-00259-CR
                                            FOURTEENTH COURT OF APPEALS
                                                         HOUSTON, TEXAS
                                                       9/18/2015 5:19:27 PM
                                                      CHRISTOPHER PRINE
                                                                     CLERK

          Cause No. 14-15-00259-CR

      IN THE COURT OF APPEALS          RECEIVED IN
                                 14th COURT OF APPEALS
              FOR THE               HOUSTON, TEXAS
FOURTEENTH JUDICIAL DISTRICT OF TEXAS
                                 9/18/2015 5:19:27 PM
            AT HOUSTON           CHRISTOPHER A. PRINE
                                            Clerk


             JORDAN NICHOLS,
                 Appellant,

                      v.

          THE STATE OF TEXAS,
                Appellee.


         Appeal from Cause No. 194143
      In the County Court at Law No. 4 of
             Brazoria County, Texas


           APPELLANT’S BRIEF



                       CARMEN ROE
                       CARMEN ROE LAW FIRM
                       TBN: 24048773
                       440 Louisiana, Suite 900
                       Houston, Texas 77002
                       713.236.7755 Phone
                       713.236.7756 Fax
                       carmen@carmenroe.com
                       ATTORNEY FOR APPELLANT



      ORAL ARGUMENT REQUESTED
            IDENTIFICATION OF INTERESTED PARTIES

        Pursuant to TEX.R.APP.P. 28.1(a), a complete list of the names and

addresses of all interested parties is provided below so the members of this

Honorable Court may at once determine whether they are disqualified to

serve or should recuse themselves from participating in the decision of this

case.

                         Counsel for Defendant:
                              Robert Miller
                         1346 W. Broadway Street
                          Pearland, Texas 77581

                     Counsel on Appeal for Appellant:
                               Carmen Roe
                         Carmen Roe | Law Firm
                         440 Louisiana, Suite 900
                          Houston, Texas 77002

                          Counsel for the State:
                               Jerri Yenne
                 Brazoria County District Attorney’s Office
                           111 E. Locust Street
                          Angleton, Texas 77515

                               Trial Judge:
                          Honorable Lori Rickert
                         County Court at Law No. 4
                          Brazoria County Texas




	                                   2
	  
                               TABLE OF CONTENTS
                                                                                          Page

IDENTIFICATION OF INTERESTED PARTIES........................................ 2

INDEX OF AUTHORITIES .......................................................................... 5

STATEMENT REGARDING ORAL ARGUMENT .................................... 9

STATEMENT OF THE CASE ...................................................................... 9

APPELLANT’S POINTS OF ERROR ....................................................... 11

STATEMENT OF THE FACTS .................................................................. 12

SUMMARY OF THE ARGUMENT.. ......................................................... 13

APPELLANT’S POINT OF ERROR NUMBER ONE……………………14

                Appellant’s guilty plea was involuntarily and
                unknowingly entered as a result of trial counsel’s
                failure to advise him that the stop that formed the basis
                for an illegal detention, and that yielded the contraband
                forming the basis of his arrest and plea was illegal and
                violated the Fourth Amendment to the United States
                Constitution, Art. I, § 9 of the Texas Constitution and
                Art. 38.28 of the Texas Code of Criminal Procedure.

APPELLANT’S POINT OF ERROR NUMBER TWO………………….14

                Appellant was denied the effective assistance of counsel
                when trial counsel failed to perform an adequate legal
                and factual investigation.

STATEMENT OF THE FACTS………………………………………….14

A. The Writ Hearing……………………………………………...…….…14

       1. Appellant’s Post-Conviction Writ Exhibits…………………….…...14
	                                             3
	  
       2. Conflicting Affidavits and File of Robert Miller………………….15

B. Applicant’s Plea of Guilty……………………………………………18

ARGUMENTS AND AUTHORITIES………………………………….19

       A. Standard of Review: Ineffective Assistance of Counsel…………19

       B. Standard of Review: Involuntary Guilty Pleas………………...…23

       C. Trial Court Determinations Unsupported By The Record Are Not
       Entitled to Deference………………………………………………..24

       D. Counsel’s Performance Was Objectively Deficient……………..27

             1. Counsel’s Failure to Advise Appellant That The Detention
                That Yielded Contraband Was Constitutionally Flawed
                Was Objectively Deficient Conduct………………………27

             2. Illegal Detention: Did Not Commit a Traffic Offense……28

             3. A Motion to Suppress If Filed Would Have Been
                Successful………………………………………………...33

E. Prejudice……………………………………………………………..34

F. Conclusion…………………………………………………………...36

CONCLUSION AND PRAYER……………………………………….37

CERTIFICATE OF SERVICE…………………………………………38

CERTIFICATE OF COMPLIANCE…………………………………...38




	                                    4
	  
                      INDEX OF AUTHORITIES

CASES                                                               PAGE

Ballard v. State, 987 S.W.2d 889 (Tex. Crim. App. 1999)……………..….28

Boyington v. State, 738 S.W.2d 704 (Tex. App. – Houston [1st Dist.] 1985,
no pet.)…………………………………………………………………. 27,33

Cannon v. State, 668 S.W.2d 401 (Tex. Crim. App. 1984)……………......19

Cardenas v. State, 960 S.W.2d 941 (Tex. App. – Texarkana 1998)……….23

Cooper v. State, 769 S.W.2d 301 (Tex. App. – Houston [1st Dist.] 1989)...20

Duncan v. Ornoski, 528 F.3d 1222 (9th Cir. 2008)………………………...25

Ex parte Amezquita, 223 S.W.3d 363 (Tex. Crim. App. 2006)…………....26

Ex parte Briggs, 187 S.W.3d 458 (Tex. Crim. App. 2005)………………..34

Ex parte Felton, 815 S.W.2d 733 (Tex. Crim. App. 1991)………………...20

Ex parte Lewis, 219 S.W.3d 335 (Tex. Crim. App. 2007)…………………24

Ex parte Lilly, 656 S.W.2d 490 (Tex. Crim. App. 1983)…………………..21

Ex parte Moody, 991 S.W.2d 856 (Tex. Crim. App. 1999)………….…22,34

Ex parte Peterson, 117 S.W.3d 804 (Tex. Crim. App. 2003)………..…….23

Ex parte Richardson, 70 S.W.3d 865 (Tex. Crim. App. 2002)……….……23

Ex parte Welborn, 785 S.W.2d 391 (Tex. Crim. App. 1990)…...…..21,24,32

Ex parte Wolfe, 296 S.W.3d 160 (Tex. App.- Houston [14th Dist.]
2009, pet. ref’d)……………………………………………………………36

Ex parte Zepeda, 819 S.W.2d 874 (Tex. Crim. App. 1991)………………19
	                                   5
	  
Flowers v. State, 951 S.W.2d 883 (Tex. App. – San Antonio 1997)……...34

Gonzalez v. State, 369 S.W.3d 851 (Tex.Crim.App. 2012)……………….28

Goudeau v. State, 209 S.W.3d 713 (Tex. App. – Houston [14th Dist.]
2006)……………………………………………………………………….28

Griffin v. Warden, 970 F.2d 1355 (4th Cir. 1992)…………………………25

Hill v. Lockhart, 474 U.S. 52 (1985)………………………………..22,35,36

Hinton v. Alabama, 571 S. Ct. 1081 (2014)………………………….……32

Jackson v. State, 857 S.W.2d 678 (Tex. App.-Houston [14th Dist.] 1993)..

Kimmleman v. Morrison, 477 U.S. 365 (1986)…………………………….25

Lloyd v. Whitley, 977 F.2d 149 (5th Cir. 1992)…………………………….24

McMann v. Richardson, 397 U.S. 759 (1970)………………………….22,34

Melton v. State, 987 S.W.2d 72 (Tex. App. – Dallas 1998)…..…25,28,33,36

Mincey v. Arizona, 437 U.S. 385 (1978)………………………………….29

Miniel v. State, 831 S.W.2d 310 (Tex. Crim. App. 1992)…………….…..19

Moore v. Johnson, 194 F.3d 586 (5th Cir. 1999)………………………....26

Nero v. Blackburn, 597 F.2d 991 (5th Cir. 1979)……………………..…..21

North Carolina v. Alford, 400 U.S. 25 (1970)…………………………23,37

Robertson v. State, 187 S.W.3d 475 (Tex. Crim. App. 2006)…………….26

Rompilla v. Beard, 545 U.S. 374 (2005)………………………………….21

State v. Ballman, 157 S.W.3d 64 (Tex. App.-Fort Worth 2004)…….passim


	                                   6
	  
State v. Patterson, 291 S.W.3d 121 (Tex. App.-Amarillo 2009)…………32

Strickland v. Washington, 466 U.S. 668 (1984)………………………passim

Tallant v. State, 866 S.W.2d 642 (Tex. App. – Tyler 1993)………………35

Terry v. Ohio, 392 U.S. 1 (1968)………………………………………….29

Tollett v. Henderson, 411 U.S. 258 (1973)………………………………..23

United States v. Lopez-Valdez, 178 F.3d 282 (5th Cir. 1999)…………….29

Whren v. U.S., 517 U.S. 806 (1996)………………………………………30

Wilkerson v. State, 726 S.W.2d 542 (Tex. Crim. App. 1986)………….…20

Wiggins v. Smith, 539 U.S. 510 (2003)…………………………………...20




	                               7
	  
OTHER SOURCES
                                               	  
ABA STANDARDS OF CRIMINAL JUSTICE §4-4.1……………………………21

ABA STANDARDS OF CRIMINAL JUSTICE §14-3.2………………………..…24	  

ART. 1 SEC. 9, TEXAS CONSTITUTION ............................................. 10,13,18,27

TEX. CODE CRIM. PROC. 38.23…………………………………………..28,35

TEX.R.APP.P. 28.1(a)...................................................................................... 2

TEX. TRANS. CODE §542.001…………………………………………..passim

TEX. TRANS. CODE §542.201………………………………………..... passim

PEARLAND. MUNI. CODE §29-189………………………………….… passim




	                                                    8
	  
                                 STATEMENT REGARDING ORAL ARGUMENT

                   Oral argument would significantly assist this Court in the decision-

making process because this case presents an important question regarding

counsel’s duty to conduct a reasonable and factual investigation, prior to

advising Appellant to plead guilty.

                                                                   STATEMENT OF THE CASE

                   On May 7, 2012, Appellant was charged by information with the

misdemeanor offense of possession of marijuana in Cause Number 194143

in the County Court At Law No. 4, Brazoria County, Honorable Lori

Rickert, presiding. (1 CR1 4). Appellant retained Robert Miller to represent

him. (2 RR 31). On August 23, 2012, Appellant pled guilty to the reduced

charge of possession of drug paraphernalia after completing a drug

awareness class. Punishment was assessed at a $500 fine. (2 RR 7-9).

                   On September 16, 2014, Appellant filed a misdemeanor post-

conviction writ of habeas corpus alleging that the Appellant’s plea was

involuntary based on the incomplete or inadequate advice of counsel. (1 CR

11). On February 26, 2015, the court conducted a hearing on Appellant’s




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1 “CR” refers to the Clerk’s Record following by page number and “RR” refers to the

Reporter’s Record followed by page number.
	                                                                                                                  9
	  
post-conviction writ. (1 RR 5). On February 27, 2015, the trial court denied

Appellant’s writ of habeas corpus. (1 Suppl. CR2 1).

                    On June 23, 2015, without a request from the trial court, the State

filed finding of facts and conclusions of law. (1 Suppl. CR 3). The trial court

adopted the State’s findings of fact and conclusions of law. (1 Suppl. CR 3).

                    On March 5, 2015, Appellant’s notice of appeal and the trial court’s

certification of the right to appeal were timely entered. (1 CR 98; 108). This

appeal follows.




	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2	  “Supp. CR” refers to the Supplemental Clerk’s Record followed by page number.


	                                                                                                                   10
	  
           APPELLANT’S POINTS OF ERROR


            POINT OF ERROR NUMBER ONE

       Appellant’s guilty plea was involuntarily and
       unknowingly entered as a result of trial counsel’s
       failure to advise him that the stop that formed the
       basis for an illegal detention, and that yielded the
       contraband forming the basis of his arrest and
       plea was illegal and violated the Fourth
       Amendment to the United States Constitution, Art.
       I, § 9 of the Texas Constitution and Art. 38.28 of
       the Texas Code of Criminal Procedure. (1 CR 15)

              POINT OF ERROR NUMBER TWO

       Appellant was denied the effective assistance of
       counsel when trial counsel failed to perform an
       adequate legal and factual investigation. (1 CR
       15).




	                             11
	  
                        STATEMENT OF FACTS

       On May 7, 2012 at approximately 4:30 p.m., Appellant, an 18-year

old high school student, was exiting the Food Town parking lot located at

7121 Broadway in Pearland, Texas. (1 CR 45). Officer T.W. Madrid of the

Pearland Police Department stopped him at the nearby Exxon gas station for

failing to signal when exiting the Food Town parking lot. (1 CR 45).

       Once stopped, Officer Madrid approached Appellant’s vehicle where

he smelled the strong odor of fresh marijuana. (1 CR 45). Officer Madrid

observed Appellant to be visibly shaking and described him as so shaken he

could barely remove his drivers license from his wallet. (1 CR 45). When

asked if there was any marijuana in the vehicle, Appellant told Officer

Madrid there was a baggie located in the center console. (1 CR 45).

       Appellant was placed under arrest and a search of his vehicle revealed

a baggie of a green leafy substance in the center console, which measured

0.06 ounces. (1 CR 45). No other drugs or paraphernalia was found in the

vehicle.

       At Appellant’s first court setting a plea agreement was negotiated to

reduce the possession of marijuana charge to a possession of drug

paraphernalia after Appellant successfully completed a drug awareness class

(1 RR 23). On his second court setting, having completed the drug
	                                   12
	  
awareness class, Appellant waived his right to trial and entered a plea of

guilty to the reduced charge of Class C misdemeanor possession of drug

paraphernalia. (2 RR 9).

                   SUMMARY OF THE ARGUMENT

                                   I. & II.

       Appellant was denied the effective assistance of counsel because trial

counsel failed to conduct a reasonable pretrial factual or legal investigation

that would have provided a meritorious defense to drug charges. Even a

cursory review of case law that was available at the time of Appellant’s

guilty plea would have revealed that no traffic offense was committed and

therefore any detention was unlawful. Because trial counsel neither

identified the correct legal issue nor researched the law applicable in this

case, his conduct was objectively deficient. Because Appellant both relied

on trial counsel’s advice prior to pleading guilty and suffered harm as a

result, counsel’s objectively deficient conduct prejudiced the defense.




	                                    13
	  
                   ARGUMENT AND AUTHORITIES

           POINT OF ERROR NUMBER ONE (RESTATED)

             Appellant’s guilty plea was involuntarily and
             unknowingly entered as a result of trial counsel’s
             failure to advise him that the stop that formed the
             basis for an illegal detention, and that yielded the
             contraband forming the basis of his arrest and
             plea was illegal and violated the Fourth
             Amendment to the United States Constitution, Art.
             I, § 9 of the Texas Constitution and Art. 38.28 of
             the Texas Code of Criminal Procedure. (1 CR 15).

             POINT OF ERROR NUMBER TWO (RESTATED)

             Appellant was denied the effective assistance of
             counsel when trial counsel failed to perform an
             adequate legal and factual investigation. (1 CR
             15).

                         STATEMENT OF FACTS

                            A. The Writ Hearing

               1. Appellant’s Post-Conviction Writ Exhibits

       Appellant’s nineteen post-conviction exhibits were admitted without

objection at the writ hearing. (1 RR 4). Pertinent exhibits included:

           • Transportation Code §545.104: a turn signal is required to
             indicate an intention to turn when a vehicle is being operated
             on a highway. (2 RR 44)

           • Transportation Code §542.201: a local authority may not
             enact or enforce an ordinance or rule that conflicts with this
             subtitle unless expressly authorized by this subtitle. (2 RR
             74).


	                                    14
	  
           • Transportation Code §542.001: operation of a vehicle applies
             only to the operation of a vehicle on a highway. (2 RR 72).

           • Pearland Municipal Code §29-189: “no person shall turn any
             vehicle without first giving an appropriate turn signal in the
             event any other traffic may be affected by such movement.
             Such signal of intention to turn right or left, when required,
             shall be given continuously during not less than one hundred
             (100) feet by the driver of such vehicle before turning.” (2 RR
             73).

           • State v. Ballman, 157 S.W.3d 65 (Tex. App. – Fort Worth
             2004, pet. ref’d): the failure to signal from private parking lot
             onto a public highway did not establish probable cause
             warranting a traffic stop. (2 RR 48).

           • Trial counsel’s three affidavits. (2 RR 7,63,71).

           • Appellant’s trial file. (2 RR 29-42).

                2. Conflicting Affidavits and Trial Counsel’s File

       Undersigned counsel met with Appellant’s trial counsel, on May 27,

2014 regarding his representation of Appellant. (1 RR 88). At that time trial

counsel provided a complete copy of the file maintained in his office for

Appellant’s case. On July 8, 2014 Undersigned counsel sent an affidavit to

trial counsel, which memorialized the conversation regarding his

representation in this case, specifically the affidavit addressed the issue

identified by trial counsel. After reviewing same, trial counsel emailed the

signed affidavit. (1 RR 65).




	                                   15
	  
       In the July 19th affidavit trial counsel identified the issue in

Appellant’s case as the following:

         “I researched the case law as to the legality of Mr. Nichols’ traffic
        stop and felt it was a bad stop because my interpretation of the
        relevant case law was that he was only required to use his turn
        signal within the last 100 feet before the turn, even when pulling
        into a turn-only lane”. (2 RR 65; Exhibit 18)(emphasis added).

       Undersigned counsel subsequently called trial counsel and advised

him that he had in fact identified the wrong issue in this case, because the

actual issue was not that Appellant was required to use a turn signal within

the last 100 feet before the turn but rather, whether or not Appellant was

required to use a turn signal when exiting from a private drive onto a public

roadway. (1 RR 67).

       On August 22, 2014, trial counsel was sent an updated affidavit

memorializing this conversation where Undersigned counsel advised him of

the legal issue impacting the traffic stop. (1 RR 68). Undersigned counsel

proffered an un-admitted affidavit dated July 21, 2014 that identified the

issue in this case as:

         “I researched case law about the legality of the traffic stop and at
        the time I believed it was a bad stop because Mr. Nichols was only
        required to use his turn signal within the last 100 feet before the
        turn, even when pulling into a turn-only lane. However, I am now
        aware that the controlling legal issue in this case was whether
        Mr. Nichols was required to use his turn signal when leaving a
        private driveway upon entering a public roadway.”


	                                   16
	  
(2 RR 87-89; emphasis added).

                  On September 1, 2014, trial counsel responded by email stating that

he did not agree with the updated affidavit, and specifically he disagreed that

he had missed the issue. (2 RR 83). In addition, he attached to his

correspondence a “slightly modified” affidavit, insisting this affidavit was

his final statement. (2 RR 68).

                  The September 1, 2014 “slightly modified” affidavit is identical to the

July 21st3 affidavit (2 RR 87), with the exception that he used a different

font and identified the legal issue as the following:

                      “I researched the case law as to the legality of Mr. Nichols’ traffic
                     stop and felt it was a bad stop because my interpretation of the
                     relevant case law was that he was not required to use his turn
                     signal when leaving a private driveway upon entering a public
                     roadway”

(2 RR 72-73; Exhibit 23)(emphasis added).

                  During the writ hearing, however, trial counsel admitted that the first

time he identified the correct legal issue in this case was only after

Undersigned counsel provided it to him in the affidavit not admitted in

evidence of July 21, 2014. (2 RR 90). Notably, the legal basis provided trial

counsel final affidavit signed, September 1, 2014, uses the identical

language provided to him in the prior affidavit he refused to sign. (2 RR 73).
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
           This affidavit was not admitted into evidence, was unsigned by trial counsel, and dated
July 21, 2014.
	                                                                                                            17
	  
       Although trial counsel testified that he discussed the potential to file a

motion to suppress, (2 RR 50), his notes and affidavits make clear that he

identified and researched the wrong legal issue in this case based on the

following information:

       • Handwritten notes in his file identifying the issue as whether a turn
         signal was required 100 feet before an intersection. (2 RR 36;
         Exhibit 7).

       • Case law contained in his file regarding whether a turn signal was
         required 100 feet from an intersection. (2 RR 35; Exhibit 7).

       • The July 8, 2014 affidavit sent to trial counsel memorializing a
         conversation where he identified the legal issue as whether a turn
         signal was required 100 feet from an intersection. (2 RR 76;
         Exhibit 18).

       • The July 8, 2014 affidavit signed by trial counsel identifying the
         issue as whether a turn signal was required 100 feet from an
         intersection. (2 RR 81; Exhibit 19).

                         B. Appellant’s Plea of Guilty

       Trial counsel testified during the writ hearing that he knew that

Appellant had no prior criminal history and was going to college or intended

to go to college. (1 RR 79). He testified he never discussed deferred

adjudication with Appellant and that it was a “judgment call”, (1 RR 80-81),

based on the fact that Appellant “was young and could mess up on




	                                     18
	  
probation”4 (1 RR 81). Trial counsel testified that he ultimately told

Appellant to take a deal based on the legal research he conducted. (1 RR 92).

Specifically trial counsel said:

                       “And based on my research and what I was seeing and my
                       interpretation of what was out there, I advised him that I believed it
                       was in his best interest to accept a Class C [misdemeanor].”

(1 RR 51).

                                                       ARGUMENT AND AUTHORITIES

                                    A. Standard of Review: Ineffective Assistance of Counsel

                  Appellant was entitled to the reasonably effective assistance of

counsel under the Sixth Amendment to the United States Constitution and

Art. I, §9 of the Texas Constitution. Wilkerson v. State, 726 S.W.2d 542, 548

(Tex. Crim. App. 1986). Under the standard in Strickland v. Washington,

466 U.S. 668, 698 (1984), a defendant seeking relief as a result of counsel’s

conduct must first show by a preponderance of the evidence that counsel’s

performance was deficient and then demonstrate that this deficient

performance prejudiced the defense. Miniel v. State, 831 S.W.2d 310, 323

(Tex. Crim. App. 1992). Deficient performance is conduct by a lawyer that

goes beyond the bounds of prevailing, objective professional standards.


	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
4	   Trial counsel admitted at the writ hearing that he never discussed probation with

Appellant. (1 RR 18). In addition, there is no evidence in trial counsel’s file or the writ
hearing that would indicate Appellant would have been unsuccessful on probation.	  
	                                                                                                          19
	  
Strickland v. Washington, 466 U.S. 668, 687-688 (1984). For an error on

counsel’s part to reach this level, there must be a reasonable probability, a

probability sufficient to undermine confidence in the outcome of the trial,

that, but for counsel’s unprofessional errors, the outcome of the proceeding

would have been different. Ex parte Zepeda, 819 S.W.2d 874, 876 (Tex.

Crim. App. 1991). The defendant must only prove ineffective assistance of

counsel by a preponderance of the evidence. Cannon v. State, 668 S.W.2d

401, 403 (Tex. Crim. App. 1984). The Supreme Court has held that a

defendant need not show that counsel’s deficient performance more likely

than not altered the outcome in the case:

       The result of a proceeding can be rendered unreliable, and hence, the
       proceeding itself unfair, even if the errors of counsel cannot be shown
       by a preponderance of the evidence to have determined the outcome…

       In every case the court should be concerned with whether … the result
       of the proceeding is unreliable because of a breakdown in the
       adversarial process that our system counts on to produce just results.

Id. at 694-96.

       The Supreme Court has held that counsel’s performance is measured

against an “objective standard of reasonableness,” Strickland v. Washington,

466 U.S. at 688, “under prevailing professional norms.” Id. “Prevailing

norms of practice as reflected in the American Bar Association standards

and the like … are guides to what is reasonable.” Wiggins v. Smith, 539 U.S.


	                                    20
	  
510, 527 (2003); see also Rompilla v. Beard, 545 U.S. 374, 387

(2005)(“[W]e have long referred [to these ABA Standards] as guides to

determining what is reasonable.”); 1 ABA STANDARDS                OF   CRIMINAL

JUSTICE, The Defense Function, Sec. 4-4.1, (“Defense counsel should

conduct a prompt investigation of the circumstances of the case and explore

all avenues leading to facts relevant to the merits of the case and the penalty

in the event of conviction.”)(emphasis added).

       While the adequacy of trial counsel’s performance must be gauged by

the totality of the representation afforded the accused, “[S]omtimes a single

error is so substantial that it alone causes the attorney’s assistance to fall

below the Sixth Amendment standard.” Nero v. Blackburn, 597 F.2d 991,

994 (5th Cir. 1979). As the First Court of Appeals has written:

       To ignore a grievous error simply because it is single, while granting
       relief where multiple errors cumulatively reach the same magnitude,
       would be contrary to the reasons that caused the creation of the
       doctrine of ineffective assistance of counsel.

Cooper v. State, 769 S.W.2d 301, 305 (Tex. App. – Houston [1st Dist.]

1989, pet. ref’d); see also Ex parte Felton, 815 S.W.2d 733, 736 (Tex. Crim.

App. 1991)(single error was of sufficient magnitude to render trial counsel’s

performance ineffective).

       An attorney must have a firm command of the facts of the case as well

as the governing law before he can render reasonably effective assistance of
	                                    21
	  
counsel. Ex parte Lilly, 656 S.W.2d 490, 493 (Tex. Crim. App. 1983).

Counsel’s assertion that his challenged conduct was the result of a trial

strategy does not of itself negate a claim of ineffective assistance of counsel

because, “It may not be argued that a given course of conduct was within the

realm of trial strategy unless and until the trial attorney has conduct the

necessary legal and factual investigation which would enable him to make

an informed rational decision.” Ex parte Welborn, 785 S.W.2d 391, 395

(Tex. Crim. App. 1990) (emphasis added). An appellate court’s core concern

in deciding whether counsel exercised “reasonable professional judgment” is

not whether counsel’s professed tactical decision was reasonable but

whether the investigation supporting counsel’s decision was itself

reasonable. A strategy informed by an incorrect understanding of

controlling case law or where counsel conducts no investigation into the

facts or the law, that an otherwise reasonable prudent attorney would have

investigated, cannot be an objectively reasonable trial strategy. Id.,

(unreasonable strategy not to object to inadmissible hearsay in pen packets

where counsel thought material could be introduced “in a more damaging

manner”).




	                                    22
	  
                 B. Standard of Review: Involuntary Guilty Pleas

       The test for determining the voluntariness of a guilty plea is “whether

the plea represents a voluntary and intelligent choice among the alternative

courses of action open to the defendant.” Hill v. Lockhart, 474 U.S. 52, 56-

57 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970). When

a defendant enters his plea of guilty upon the advice of counsel, the

voluntariness of the plea depends on whether counsel’s advice “was within

the range of competence demanded of attorneys in criminal cases.” Id.,

quoting McMann v. Richardson, 397 U.S. 759, 771 (1970). In Tollett v.

Henderson, 411 U.S. 258, 267 (1973), the Court held that a defendant who

enters a plea of guilty upon the advice of counsel “may only attack the

voluntary and intelligent character of the guilty plea by showing that the

advice of counsel was not within the standards set forth in McMann.” A

defendant must show that but for counsel’s unreasonable advice, there is a

reasonable probability he would not have pleaded guilty, i.e., the prejudice

prong of Strickland. Hill v. Lockhart, 474 U.S. at 56-57.

       If counsel conveys erroneous or incomplete information of a sufficient

magnitude to the defendant, a guilty plea based on that information is




	                                    23
	  
involuntary5. Ex parte Moody, 991 S.W.2d 856, 857-58 (Tex. Crim. App.

1999). A guilty plea will not support a conviction where it is motivated by

significantly misleading or incomplete advice conveyed by counsel, and a

guilty plea based thereon is involuntary. Cardenas v. State, 960 S.W.2d 941,

943 (Tex. App. – Texarkana 1998, pet. ref’d).

                   C. Trial Court Determination Are Not Entitled to Deference if
                                     Unsupported By The Record

                  Appellant contends that the trial court erred in denying his habeas

relief from a judgment of conviction of the misdemeanor offense of

possession of drug paraphernalia on the ground that his trial counsel was

ineffective.

                  Appellant must only prove facts that entitle him to relief by a

preponderance of the evidence. Ex parte Richardson, 70 S.W.3d 865, 870

(Tex. Crim. App. 2002). Although the trial court’s factual findings based on

credibility determinations are entitled to almost total deference, its legal

conclusions are not. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.

1997). This Court reviews the facts in the light most favorable to the trial



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
5
             The ABA Standards mandate, inter alia, that defense counsel must “after appropriate
investigation…advise the defendant of the alternatives available and address
considerations deemed important by… the defendant in reaching a decision. See ABA
Standard 14-3.2 Responsibilities of defense counsel-Guilty Pleas.

	                                                                                                          24
	  
courts determination only if the record supports them. Id. Miller v. State, 393

S.W.3d 255 (Tex.Crim.App.2012).

       Because trial counsel’s claimed strategic decisions are entitled to

deference only if they are the product of informed decisions, this Court’s

“principle concern” is not whether trial counsel‘s challenged conduct was

strategic,   “but   rather   whether   the   investigation   supporting   [his]

decision…was itself reasonable. Strickland does not establish that a cursory

investigation automatically justifies a tactical decision.” Wiggins v. Smith,

539 U.S. 510, 522-23 (2003)(emphasis added). Counsels “decision cannot be

fairly characterized as ‘strategic’ unless it is a conscious choice between two

legitimate and rational alternatives. It must be borne of deliberation and not

happenstance, inattention, or neglect.” Id at 526-527.

       Trial counsel’s claim that his challenged conduct was “strategic” is

also not the end of the inquiry. “It may not be argued that a given course of

conduct was within the realm of trial strategy unless and until the trial

attorney has conducted the necessary legal and factual investigation which

would enable him to make an informed rational decision.” Ex parte

Welborn, 785 S.W.2d 391, 395 (Tex. Crim. App. 1990); Melton v. State, 987

S.W.2d 72, 77 (Tex. App. – Dallas 1998, no pet.)(counsel’s failure to fully

investigate facts of case before advising defendant to plea guilty was


	                                     25
	  
deficient conduct). Because there is a “crucial distinction between strategic

judgments and plain omissions,” Lloyd v. Whitley, 977 F.2d 149, 158 (5th

Cir. 1992), courts are “not required to condone unreasonable decisions

parading under the umbrella of strategy, or to fabricate tactical decisions on

behalf of Counsel when it appears on the face of the record that Counsel

made no strategic decision at all”. Moore v. Johnson, 194 F.3d 586, 604 (5th

Cir. 1999). A sound trial strategy is one formed by a reasonable

investigation of the facts and the controlling case law. See Robertson v.

State, 187 S.W.3d 475, 484 (Tex. Crim. App. 2006).

       Trial counsel challenged conduct is evaluated from his perspective at

the time of the plea. Strickland v. Washington, 466 U.S. 689 (“A fair

assessment of attorney performance requires that every effort be made to

reconstruct the circumstances of counsel’s challenged conduct, and to

evaluate the conduct from counsel’s perspective at the time.” (emphasis

added). Accordingly, this Court may not recreate a strategy asserted by trial

counsel by engaging in “a post-hoc rationalization of [his] conduct in lieu of

relying on “an accurate description of [his] deliberations.” 539 U.S. 510,

526-27 (2003); Kimmleman v. Morrison, 477 U.S. 365, 385 (1986) (“The

justification [counsel] offered from his omission betray a startling ignorance

of the law-or a weak attempt to shift blame from inadequate preparation.”);


	                                   26
	  
See also Griffin v. Warden, 970 F.2d 1355, 1358 (4th Cir. 1992)(“Courts

should not conjure up tactical decisions an attorney could have made, but

plainly did not.”); Duncan v. Ornoski, 528 F.3d 1222, 1237 (9th Cir. 2008)

(“In light of the Supreme Court’s admonition that reviewing courts may not

substitute their own strategic reasoning for that of trial counsel in order to

find the counsel’s performance was justified, we do not consider additional

speculative justification…).

               D. Counsel’s Performance Was Objectively Deficient

          Trial counsel had a constitutional duty to present “available evidence

and arguments” to support Appellant’s only defense. Jackson v. State, 857

S.W.2d 678, 683 (Tex. App.-Houston [14th Dist.] 1993, pet. ref’d). He was

obligated to conduct a reasonable investigation in an effort to present the

most persuasive case that he could. This duty encompasses presenting

evidence to demonstrate Appellant’s innocence, undermine the prosecutions

case, or raise a reasonable doubt of guilt. See Ex parte Amezquita, 223

S.W.3d 363, 368 (Tex. Crim. App. 2006).

         1. Counsel’s Failure to Advise Appellant That The Detention That
       Yielded Contraband Was Constitutionally Flawed Was Objectively
                                Deficient Conduct

       Based on the facts as recounted in the offense report, trial counsel should

have recognized that:


	                                       27
	  
          • Officer Madrid’s initial stop was based on Appellant’s failure to
          use a turn signal when exiting the Food Town parking lot headed
          southbound onto Reid Road and not as he approached the
          intersection of FM 518 and Reid Road.

          • Based on the plain language of the statute and well-established
          case law, Officer Madrid’s detention of Appellant’s vehicle was
          unlawful because Appellant was not required to signal when exiting
          a private parking lot and entering a public highway.

         Trial counsel’s failure to investigate the relevant case law and discuss

the merits of a motion to suppress with Appellant, as well as advise him of

the chances on any motion to suppress, could not have been the result of any

reasoned trial strategy because his failure was not informed by a reasonable

investigation and therefore was objectively deficient conduct. See Boyington

v. State, 738 S.W.2d 704, 708 (Tex. App. – Houston [1st Dist.] 1985, no

pet.) (counsel’s failure to file motion to suppress that was fruit of illegal

arrest was objectively deficient performance); Melton v. State, 987 S.W.2d

72, 77 (Tex. App. – Dallas 1998, no pet.) (counsel’s failure to fully

investigate facts of case before advising defendant to plea guilty was

deficient conduct).

       2. Illegal Detention: Appellant Did Not Commit a Traffic Offense

         The Fourth Amendment to the United States Constitution, as well as

Art. I, § 9 of the Texas Constitution, and Art. 38.23 of the Code of Criminal




	                                      28
	  
Procedure6 make illegal all unreasonable searches and seizures. “Searches

conducted outside the judicial process, without prior approval by a judge or

magistrate, are per se unreasonable under the Fourth Amendment – subject

only to a few specifically established and well delineated exceptions.”

Mincey v. Arizona, 437 U.S. 385, 390 (1978); Gonzalez v. State, 369 S.W.3d

851, 854 (Tex.Crim.App. 2012). One such exception is embodied in Terry v.

Ohio, 392 U.S. 1, 30 (1968), allowing an investigating officer to detain a

person temporarily upon a showing of reasonable suspicion that he is

involved in criminal activity, including a traffic offense. The decision to stop

a vehicle is reasonable when the officer has reasonable suspicion or probable

cause to believe a traffic violation has occurred. Whren v. U.S., 517 U.S.

806, 812 (1996). Although an officer’s observations alone can be sufficient

to establish the traffic offense, the officer must be clear on the elements of

the law that constitute the offense and it must be a violation of the law. “An

officer’s suspicion of an alleged traffic violation, however, cannot be based

on a mistaken understanding of traffic laws.” Goudeau v. State, 209 S.W.3d

713, 716 (Tex. App. – Houston [14th Dist.] 2006); see also United States v.

Lopez-Valdez, 178 F.3d 282, 289 (5th Cir. 1999).

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
6	  “No evidence obtained by an officer or other person in violation of any provisions of the

Constitution or laws of the State of Texas, or of the Constitution or laws of the United
States of America, shall be admitted in evidence against the accused on trial of any
criminal case.”
	                                                                                                          29
	  
       An officer must have probable cause to arrest the driver for a traffic

violation without a warrant. State v. Ballman, 157 S.W.3d 65 (Tex. App. –

Fort Worth, pet. ref’d); see also Ballard v. State, 987 S.W.2d 889, 891 (Tex.

Crim. App. 1999). Probable cause exists when the facts and circumstances

within the officer’s knowledge at that time would cause a reasonably prudent

officer to believe that a certain person has committed or is committing a

crime. Id. When an officer observes a traffic offense, he may arrest the

violator. “Here, however, [Officer Madrid] did not observe a traffic offense;

he only thought he had.” Citing State v. Ballman, 157 S.W.3d at 70.

       Viewed through this prism of legal authority, it is clear that Officer

Madrid’s detention of Appellant was not justified because no traffic offense

occurred when Appellant failed to signal his turn when exiting the Food

Town parking lot onto a public highway. The offense report shows that

while monitoring traffic, Officer Madrid predicated his stop upon observing

Appellant’s vehicle,

        “…exit the Food Town parking lot southbound onto Reid Road
       without signaling. I then followed the vehicle southbound through the
       intersection of FM 518 and Reid Road before stopping the vehicle at
       the Exxon Gas station at 7218 Broadway.” (1 CR 45).

There is nothing about these facts that would lead a reasonable officer to

believe that a traffic offense had been committed based on the plain

language of the Texas Transportation Code.
	                                   30
	  
       Section 545.104 of the Texas Transportation Code provides that an

operator is required to use a turn signal to indicate an intention to turn,

change lanes, or start from a parked position when a vehicle is being

operated on a highway. Further, a “highway” is defined as “the width

between the boundary lines of a publicly maintained way any part of which

is open to the public for vehicle traffic.” Id., see also §541.302(5).

       Relying on the language of the statute, case law makes clear that

failing to signal a turn when exiting a private parking lot onto a public

highway is not a traffic offense, and therefore could not justify Officer

Madrid’s stop of Appellant’s vehicle. State v. Ballman, 157 S.W.3d at 70,

(defendant’s failure to signal from private parking lot did not establish

probable cause warranting traffic stop).

       As an initial matter Appellant contends trial counsel failed to

recognize the correct legal issue in this case. Trial counsel had three cases in

his file that provided his legal research before advising Appellant to plead

guilty. Two of those cases were State v. Kidd, 2010 WL 5463893 (Tex.

App.—Austin Dec. 30, 2010, no pet.) and Reha v. State, 99 S.W. 3d 373

(Tex.App.-Corpus Christi 2003, no pet.), which dealt with whether a turn

signal was required one hundred feet from an intersection. (1 RR 77). The

third case Zeno v. State, 862 S.W.2d 165 (Tex. App.—Houston [1st Dist.]


	                                     31
	  
1993, pet. ref'd), analyzed a search incident to arrest. (1 RR 77). Not one

case contained in trial counsel’s file indicated he researched or identified the

correct legal issue7.

                  Trial counsel also erroneously relied on a Pearland Municipal

Ordinance, believing that it would validate the stop. When asked at the writ

hearing whether he thought the Pearland Municipal Ordinance did validate

the stop of Appellant’s vehicle, trial counsel said, “Yes, I did”. (1 RR 59).

When questioned about whether the Transportation Code supersedes the

municipal ordinance, trial counsel said he, “[n]ever researched that issue” (1

RR 59), and “I don’t really agree with that. But okay.” (1 RR 60).

                  In spite of trial counsel’s belief, case law makes clear that a municipal

ordinance cannot supersede the Transportation Code. State v. Patterson, 291

S.W.3d 121, 124 (Tex. App.-Amarillo 2009, no pet.) (“To the extent

Patterson suggests that Amarillo's ordinance superseded § 552.006, he is

mistaken. Our legislature declared that a ‘local authority may not enact or

enforce an ordinance or rule that conflicts with’ subtitle C of title 7 of the

Transportation Code ‘unless expressly authorized by’ that same subtitle.

TEX. TRANSP. CODE ANN. § 542.201 (Vernon 1999)”. Since trial counsel
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
7	   Trial counsel verified that his file did not contain State v. Ballman (1 RR 62) and

admitted that there was nowhere in his file that shows he researched Texas
Transportation Code §542.001 (vehicles entering a highway from a private drive), or	   that
he relied on Texas Transportation Code §542.201 to decide which code would supersede
the other. (1 RR 62).	  	  
	                                                                                                          32
	  
failed to adequately investigate the case law impacting this meritorious

issue, his advice that Appellant plea guilty pursuant to the State’s plea

agreement was objectively deficient. (1 RR 81).

         3. A Motion to Suppress: Had One Been Filed it Would Have Been
                                    Successful
                    As the Supreme Court of the United States recently held, “An

attorney’s ignorance of a point of law that is fundamental to his case

combined with his failure to perform basic [legal] research on that point is a

quintessential example of unreasonable performance under Strickland.”

Hinton v. Alabama, 571 S. Ct. 1081 (2014). So too, even if trial counsel had

investigated relevant case law, he did not advise Appellant of the legal issues

raised by Officer Madrid’s report or the likelihood of success had Appellant

filed a motion to suppress8. Because the case law in this area was readily

available at the time of Appellant’s guilty plea and because trial counsel

failed to conduct a reasonable legal investigation or advise Appellant of the

only meritorious issue raised by evidence prior to entering a plea of guilty,

his conduct was objectively unreasonable. Melton v. State, 987 S.W.2d 72,

77 (Tex. App. – Dallas 1998, no pet.)(counsel’s failure to fully investigate

facts of case before advising defendant to plea guilty was deficient conduct).

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
8
           Trial counsel admitted during the writ hearing that he does not even remember advising
Appellant of the possibility of filing a motion to suppress (“I believe I did. I don't know
why we wouldn't have, but I don't recall specifically”). (1 RR 51).
	                                                                                                          33
	  
       Because the detention that formed the basis for the search of

Appellant’s vehicle was constitutionally flawed, counsel’s failure to

determine there were meritorious grounds to suppress the marijuana was

objectively deficient conduct that could not have been the product of a

reasoned trial strategy. See Boyington v. State, 738 S.W.2d at 708 (counsel’s

failure to file motion to suppress that was fruit of illegal arrest was

objectively deficient performance); Melton v. State, 987 S.W.2d at 77

(counsel’s failure to fully investigate facts of case before advising defendant

to plea guilty was deficient conduct).

                                E. Prejudice

       Appellant is a layman and not versed in Texas or United States search

and seizure law. His guilty plea was induced by counsel’s advice to accept

the State’s plea bargain based on a substantially unreasonable investigation

of the facts and law. At the writ hearing, Appellant stated he would not have

accepted the State’s plea offer if he had known there was a meritorious

search issue in his case. (1 RR 42). Moreover, Appellant said he relied on

Trial counsel’s advice in deciding to plead guilty to a misdemeanor drug

charge. (1 RR 42). Trial counsel’s advice was inadequate and incomplete in

that he did not advise Appellant that Officer Madrid’s detention and

subsequent search yielding contraband forming the basis of his arrest and


	                                       34
	  
guilty plea was illegal and violated the Fourth Amendment, Art. I. § 9, and

Art. 38.23(a). It is well settled that this incomplete and misleading advice

was not within the range of competence for a criminal attorney. Ex parte

Moody, 991 S.W.2d 856, 858 (Tex. Crim. App. 1999); Flowers v. State, 951

S.W.2d 883, 885 (Tex. App. – San Antonio 1997, no pet.); Tallant v. State,

866 S.W.2d 642, 643 (Tex. App. – Tyler 1993, no pet.). Because counsel’s

failure to advise Appellant that the detention yielding the contraband, which

formed the basis of his arrest and guilty plea, was illegal and violated state

and federal constitutional and statutory prohibitions was not a “strategic”

decision made after a full investigation of the law and facts, his performance

was objectively deficient.

       Prejudice is shown in this case because Appellant can demonstrate by

a preponderance of the evidence that, but for counsel’s objectively deficient

performance, there was a reasonable probability that Appellant would not

have pleaded guilty. Hill v. Lockhart, 474 U.S. at 59. Appellant was entitled

to rely upon counsel to conduct an independent examination of the facts and

the law, including any meritorious suppression issues, and then offer his

informed opinion as to what plea should be entered. McMann v. Richardson,

397 U.S. at 769-770. Because Appellant has shown that he would not have

pleaded guilty had he known that he had a meritorious basis to exclude the


	                                   35
	  
marijuana which formed the basis of his arrest and plea, he has demonstrated

that his guilty plea was unknowingly and involuntarily entered. Ex Parte

Wolfe, 296 S.W.3d 160 (Tex. App.- Houston [14th Dist.] 2009, pet. ref’d);

Ex parte Moussazadeh, 361 S.W.3d 684, 692 (Tex. Crim. App 2012) (guilty

plea was involuntarily entered where defendant would not have pleaded

guilty but for counsel’s incorrect advice concerning parole eligibility). Rios

v. State, 377 S.W.3d at 137 (guilty plea was involuntary where defendant

would not have pleaded guilty but for counsel’s failure to discover that

technician who maintained breath-testing machine had falsified calibration

records).

                                F. Conclusion

       This case presents, in compelling terms, a breakdown in the

adversarial system of justice. The sole legal issue in Appellant’s drug case

was never identified, researched or litigated even though the controlling

statutes and case law make clear that the ultimate detention and search of

Appellant’s vehicle was constitutionally flawed. Trial counsel failed to

identify the issue, research the relevant case law, present it to the prosecutor

or advise Appellant prior to encouraging him to plead guilty. Because

Appellant relied on the inadequate or misleading advise of trial counsel, his

plea was involuntary, in that it was not knowingly and voluntarily entered


	                                    36
	  
because it does not “represent a voluntary and intelligent choice among the

alternative courses of action open to the defendant.” Hill v. Lockhart, 474

U.S. 52, 56-57 (1985), quoting North Carolina v. Alford, 400 U.S. 25, 31

(1970). For all these reasons, Appellant asks this Court to sustain these

claims and reverse the trial courts ruling denying habeas corpus relief.

                         CONCLUSION AND PRAYER

       Appellant prays that this Honorable Court reverse the trial court’s

order denying habeas corpus relief and remand for a new trial.


                                RESPECTFULLY SUBMITTED,

                                /s/ Carmen Roe
                                _________________________________
                                CARMEN ROE
                                TBN: 24048772
                                440 LOUISIANA, SUITE 900
                                HOUSTON, TEXAS 77002
                                713.236.7755
                                713.236.7756 FAX
                                ATTORNEY FOR APPELLANT




	                                    37
	  
                      CERTIFICATE OF SERVICE

        Pursuant to TEX.R.APP.P. 9.5(d), this appeal was served upon

opposing counsel by electronic-filing system of same on September 18,

2015.

                                /s/ Carmen Roe
                                 _______________________________
                                CARMEN ROE


                   CERTIFICATE OF COMPLIANCE

        This document complies with the typeface requirements of TEX. R.

APP. P. 9.4(e) because it has been prepared in a conventional typeface no

smaller than 14-point for text and 12-point for footnotes. This document also

complies with the word-count limitations of TEX. R. APP. P. 9.4(i), if

applicable, because it contains 6,898 words, excluding any parts exempted

by TEX. R. APP. P. 9.4(i)(1).


                                      /s/ Carmen Roe
                                      ______________________________
                                      CARMEN ROE




	                                   38
	  
