Abatement Order filed March 17, 2020




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00601-CR

                 KENDRICK DWAYNE WALKER, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                    On Appeal from the 338th District Court
                            Harris County, Texas
                        Trial Court Cause No. 1520109

                             ABATEMENT ORDER

      A jury convicted appellant of aggravated assault against a family member,
and the trial court sentenced him to twenty-five years’ imprisonment. Appellant
challenges his conviction on appeal, including multiple allegations of ineffective
assistance of counsel. In the trial court, appellant filed a motion for new trial with
affidavits, alleging that his trial counsel failed to show him critical inculpatory
evidence—a recording of the complainant’s 911 call—and to advise about its
admissibility before appellant rejected a favorable plea deal. Appellant contends
that he would have accepted the plea deal if he had been advised of the State’s
evidence. We hold that appellant has alleged facts showing reasonable grounds to
believe that he could prevail under both prongs of the Strickland1 test for
ineffective assistance of counsel. Thus, the trial court erred by not holding a
hearing on the motion. We abate the case and remand with instructions for the trial
court to hold a hearing on appellant’s motion for new trial.

                                           BACKGROUND

         Appellant was indicted for aggravated assault against a family member. The
State’s evidence included the testimony of an officer who responded to the scene,
the testimony of an arresting officer, pictures of the complainant’s injuries, her
medical records, and a recording of her 911 call. The complainant did not testify.

         The first piece of evidence that the State presented to the jury was the
recording of the complainant’s 911 call. In it, she identified herself and stated that
she was hit with a pistol and knife across her head. She identified appellant as the
person who assaulted her.

         The first officer testified that he responded to the scene within a few minutes
of the 911 call, and it “looked like [the complainant] had been through a war
zone.” She had a large gash over one of her eyes and other injuries to her neck.
The officer testified, without objection, that the complainant told the officer that
appellant hit her with a gun and cut her with a knife. The officer also testified,
without objection, that appellant’s son said he saw appellant leave the house with a
knife.

         The second officer testified that she arrested appellant four months later
based on a warrant for the aggravated assault. She testified, without objection, that

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

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at the time of his arrest, appellant possessed illegal contraband, i.e., Xanax, which
was an arrestable offense in Texas.

       During closing arguments, the State encouraged the jury to convict appellant
based on the 911 call. Noting the complainant’s absence from trial, the State
argued, for example, “The 911 tape and these photos are her story and they do not
lie.” During deliberations, the jury asked to review the 911 call, among other
evidence. The jury found appellant guilty, and the trial court assessed punishment
at twenty-five years’ imprisonment—the minimum for a habitual offender like
appellant. See Tex. Penal Code § 12.42(d).

       Appellant, with new counsel, filed a motion for new trial supported by
affidavits from appellant and an experienced criminal defense lawyer. As one of
several grounds for a new trial, appellant alleged ineffective assistance based on
trial counsel’s failure to advise appellant about plea bargaining.2 Appellant alleged
that his trial counsel informed him about a pre-trial plea offer for five years’
imprisonment.       But, appellant alleged that trial counsel rendered ineffective
assistance by not playing the 911 call for appellant or informing appellant that the
call likely would be admissible and sufficient to support a guilty verdict.

       Appellant testified in his affidavit, among other things:

             [Trial counsel] told me the State had the 911 tape. He did not
       bring it for me to listen to and he did not tell me it would be


       2
          Appellant also alleged ineffective assistance based on trial counsel’s failure to (1)
impeach the complainant’s out-of-court statements with several convictions for theft and forgery;
(2) subpoena appellant’s brother and request a continuance when the brother was late to court
and thus could not provide exculpatory testimony; and (3) investigate the complainant’s mental
health history based on public records showing that she had been appointed special mental health
counsel for several of her prior offenses. Appellant alleged a Brady violation based on the
State’s failure to disclose the complainant’s mental health history. See Brady v. Maryland, 373
U.S. 83 (1963).

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      admissible at trial. The first time I heard the tape was when it was
      played before the jury.
             Prior to trial, I was offered a plea bargain for five years in
      prison. On the day of trial, I was offered a plea bargain for 15 years.
      [Trial counsel] never recommended that I take either plea offer and he
      did not advise me that if I went to trial I likely would be convicted. If
      I had heard the 911 tape and knew it could be admitted into evidence,
      I would have taken the first plea offer.

The other affiant was a criminal defense lawyer with thirty-five years of
experience and a former president of the Harris County Criminal Lawyers
Association.   He testified that he was asked the following question, and he
provided his answer:

            Question No. 5: If you have a copy of a complainant’s 911 call
      prior to trial and during the plea bargaining process, would you
      arrange for the defendant to listen to the tape and, if so, why?
             Answer: I would make whatever arrangements were necessary
      for the defendant to listen to the tape recording of the complainant’s
      911 call. I also would inform the client that the tape likely was
      admissible as evidence and standing alone, it was sufficient evidence
      for a jury to convict him. It would make the defendant aware of the
      State’s key evidence and aid him in deciding whether to accept a plea
      offer. There can be no rational reason not to play the tape for the
      client and to explain its ramifications to him.
            In my opinion, failure to play the tape for the client and to
      explain its ramifications, including its likely admissibility at trial, falls
      below the standard of competence for criminal defense lawyers in
      Harris County.

      In the motion, appellant asked the court to conduct a hearing. The trial court
did not hold a hearing or rule on the motion, so it was denied by operation of law.
See Tex. R. App. P. 21.8(c). On appeal, before any briefs were filed, this court
denied appellant’s motion to abate for a hearing on the motion for new trial
without prejudice to appellant re-urging the motion after appellate briefing was


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complete. See Walker v. State, 577 S.W.3d 279, 280 (Tex. App.—Houston [14th
Dist.] 2019, order).

                                          ANALYSIS

       In his first issue, appellant contends that the trial court erred by failing to
hold a hearing on his motion for new trial for three of the grounds urged in the
motion, including the failure of trial counsel to properly advise appellant during
plea bargaining. We address only this ground because it is meritorious and entitles
him to the same relief—abatement and remand for an evidentiary hearing—as his
other grounds. See Tex. R. App. P. 47.1.3

A.     Legal Principles and Standard of Review

       A defendant does not have an absolute right to a hearing on a motion for
new trial. See Hobbs v. State, 298 S.W.3d 193, 199 (Tex. Crim. App. 2009). But a
trial court abuses its discretion by 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. Id. The second requirement prevents “fishing
expeditions.” Id.

       The motion must be supported by an affidavit specifically setting out the
factual basis for the claim. Id. The defendant need not plead a prima facie case for
relief. Id. at 199–200. The defendant need not set out every component legally

       3
          Appellant also alleges that he is entitled to a new trial for a Brady violation and for
ineffective assistance of counsel based on alleged deficiencies not identified in the motion: (1)
failure to object to the authentication of the 911 recording; (2) failure to make a Confrontation
Clause objection to the first officer’s testimony about statements made to him; and (3) failure to
object to the extraneous offense of appellant’s possession of Xanax four months after the assault.
Because the trial court could grant a new trial on remand and moot these issues, or evidence
related to these issues might be introduced at the hearing, we decline to address them at this
stage.

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required to establish relief. Id. at 201. Yet, the defendant must at least allege
sufficient facts that show reasonable grounds to demonstrate that he could prevail.
Id. at 199–200.

      To prevail on a claim of ineffective assistance, a defendant must show that
(1) counsel’s performance was deficient by falling below an objective standard of
reasonableness and (2) counsel’s deficiency caused the defendant prejudice—there
is a probability sufficient to undermine confidence in the outcome that but for
counsel’s errors, the result of the proceeding would have been different. See
Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984); Perez v. State, 310
S.W.3d 890, 892–93 (Tex. Crim. App. 2010). Before a defendant is entitled to a
hearing on a motion for new trial alleging ineffective assistance, the defendant
must allege sufficient facts from which a trial court reasonably could conclude
both that (1) counsel failed to act as a reasonably competent attorney and, (2) but
for counsel’s failure, there is a reasonable likelihood that the outcome of the
proceeding would have been different. Smith v. State, 286 S.W.3d 333, 340–41
(Tex. Crim. App. 2009).

B.    Not Determinable from the Record

      Generally, the record will not be sufficient on direct review to show that
counsel’s representation was so deficient as to satisfy the first Strickland prong
because the reasonableness of counsel’s choices often involves facts that do not
appear in the record. See id. at 341. As in Smith, the State in this case does not
argue that appellant’s claim of ineffective assistance is determinable from the
record. See id. at 341 n.31. As in Smith, we conclude that whether counsel’s
alleged failures show a deficiency that prejudiced appellant is not determinable
from the record. See id. at 341.



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C.    Reasonable Grounds for Deficient Performance

      “The decision whether to plead guilty or contest a criminal charge is
ordinarily the most important single decision in any criminal case.” Boria v.
Keane, 99 F.3d 492, 496–97 (2d Cir. 1996) (quotation omitted); see also Missouri
v. Frye, 566 U.S. 134, 143 (2012) (noting that 94% of state convictions are the
result of guilty pleas). Accordingly, defendants are entitled to effective assistance
of counsel during plea negotiations. Lafler v. Cooper, 566 U.S. 156, 162 (2012);
see also Frye, 566 U.S. at 144 (requiring effective representation during plea
negotiations because anything less “might deny a defendant effective
representation by counsel at the only stage when legal aid and advice would help
him” (quotations omitted)). Counsel has a clear duty to convey plea offers to the
defendant. See, e.g., Frye, 566 U.S. at 145; Ex parte Wilson, 724 S.W.2d 72, 74
(Tex. Crim. App. 1987).

      But counsel must do more than be a messenger. Counsel must give the
defendant the benefit of counsel’s professional advice on the crucial decision of
whether to plead guilty. Purdy v. United States, 208 F.3d 41, 44 (2d Cir. 2000);
see also Lafler, 566 U.S. at 168 (“If a plea bargain has been offered, a defendant
has the right to effective assistance of counsel in considering whether to accept
it.”); accord Barlow v. Commn’r of Correction, 93 A.3d 165, 175–76 (Conn. App.
2014); State v. Hall, 8 A.3d 12, 16 (N.H. 2010); Commonwealth v. Copeland, 554
A.2d 54, 60–61 (Pa. Super Ct. 1988); State v. Bristol, 618 A.2d 1290, 1292 (Vt.
1992).

      Counsel has a duty to advise the defendant fully on whether a particular plea
to a charge appears to be desirable. Ex parte Wilson, 724 S.W.2d at 73–74; see
Martinez v. State, 74 S.W.3d 19, 20–22 (Tex. Crim. App. 2002) (remanding for
hearing on motion for new trial when the defendant alleged that counsel did not

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timely convey a plea offer or discuss the “pros and cons of going to trial”); accord
Boria, 99 F.3d at 496.       This does not mean that counsel must, under all
circumstances, give an explicit opinion as to whether a defendant should take a
plea offer. Purdy, 208 F.3d at 48. The ultimate decision about whether to plead
guilty is made by the defendant. Id. at 45; see also Ex parte Wilson, 724 S.W.2d at
74. But, in advising a defendant about the desirability of a plea, counsel “should
usually inform the defendant of the strengths and weaknesses of the case against
him.” Purdy, 208 F.3d at 45; see also State v. James, 739 P.2d 1161, 1167 (Wash.
App. 1987); cf. Brady v. United States, 397 U.S. 742, 756 (1970) (“Often the
decision to plead guilty is heavily influenced by the defendant’s appraisal of the
prosecution’s case against him . . . .”). Compare Jones v. Murray, 947 F.2d 1106,
1110–11 (4th Cir. 1991) (no deficient performance during plea negotiations when
counsel reviewed with the defendant the evidence against him and discussed the
strengths and weaknesses of the prosecution’s case), with Boria, 99 F.3d at 495–97
& n.4 (ineffective assistance because counsel failed to advise the defendant about
whether to accept a plea deal although counsel personally thought it was “suicidal”
to go to trial).

       “An attorney’s responsibility is to investigate and to evaluate his client’s
options in the course of the subject legal proceedings and then to advise the client
as to the merits of each.” Stano v. Dugger, 921 F.2d 1125, 1151 (11th Cir. 1991);
see also Ex parte Wilson, 724 S.W.2d at 74 (noting, in the context of plea offers,
that counsel “should exert his best efforts to insure that decisions of his client are
made only after the client has been informed of relevant considerations” (quotation
omitted)). Counsel must provide the defendant with an understanding of the law in
relation to the facts, so the defendant may make an informed and conscious choice
between accepting the State’s offer and going to trial. Stano, 921 F.2d at 1151.


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      According to appellant’s affidavit, his trial counsel mentioned the existence
of a recording of the complainant’s 911 call, but counsel did not provide appellant
a preview the crucial evidence before trial.      Counsel did not advise that the
recording would be admissible, as such recordings often are. Counsel did not
advise appellant to accept a plea offer or tell appellant that he likely would be
convicted at trial. Appellant also adduced testimony from an experienced criminal
defense lawyer that there is no reasonable explanation for not playing the recording
for a client when the recording is “key evidence” against him.

      As the State points out, appellant’s affidavit does not address every factual
consideration, such as what exactly was discussed about the 911 recording,
whether counsel misrepresented any of the contents of the recording, or whether
counsel advised appellant about the importance of the recording. In the affidavit
appellant does not state that counsel failed in all respects to discuss the strengths
and weaknesses of the State’s case, nor does appellant address whether counsel
advised appellant to reject the plea offer. But appellant’s burden to obtain a
hearing is only to allege facts sufficient to establish reasonable grounds that the
defendant “could potentially be entitled to relief.” See Hobbs, 298 S.W.3d at 199.
Appellant’s motion and the attached affidavits show that he has met this burden,
and he is not engaged in a “fishing expedition.” See id.; see also Martinez, 74
S.W.3d at 22 (holding that the appellant was entitled to a hearing on his motion for
new trial when he alleged that counsel failed to communicate a plea offer in a
timely manner and that counsel failed to inform him of the pros and cons of going
to trial before the offer expired).

      Appellant’s contention that counsel provided inadequate advice during plea
negotiations—by not showing appellant key inculpatory evidence and addressing
its potential admissibility—amounts to sufficient facts that show reasonable

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grounds to demonstrate that appellant could prevail on the first prong of the
Strickland test.

D.    Reasonable Grounds for Prejudice

      To show prejudice from counsel’s deficient performance that results in the
defendant’s rejection of a plea offer, a defendant must show a reasonable
probability that: (1) he would have accepted the earlier offer if counsel had not
been deficient; (2) the State would not have withdrawn the offer; and (3) the trial
court would not have refused to accept the plea bargain. See Ex parte Argent, 393
S.W.3d 781, 784 (Tex. Crim. App. 2013).

      Appellant testified that he would have accepted the State’s plea offer if he
had heard the 911 recording and knew that it could be admissible. And, the plea
offer of five years’ imprisonment was substantially lower than the statutory
minimum of twenty-five years’ imprisonment that appellant faced by going to trial.
See United States v. Gordon, 156 F.3d 376, 381 (2d Cir. 1998) (holding that a large
disparity between a plea offer and the maximum sentencing exposure under federal
guidelines was objective evidence that, when combined with the appellant’s self-
serving statement that he would have accepted a plea offer, supported the trial
court’s finding of prejudice).   The State does not contend that appellant was
required to support his motion for new trial with affirmative evidence regarding
whether the State would have withdrawn the offer or the trial court would have
accepted it. Indeed, these matters can be more fully developed at a hearing. See
Martinez, 74 S.W.3d at 22 (reasoning, when alleged deficiency involved counsel’s
failure to timely convey plea offer and discuss the pros and cons of going to trial,
that the amount of time the plea offer remained available for acceptance was
“among the factual matters that should be fully developed at a hearing”); cf.
Rodriguez v. State, 470 S.W.3d 823, 828–29 (Tex. Crim. App. 2015) (holding that

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the defendant was prejudiced by counsel’s deficient performance during pre-trial
plea bargaining; reasoning that “[t]he State likely would not have withdrawn the
plea because the record shows that there may have been difficulties getting the
victims to testify at the time of trial” and “there is nothing in the record to indicate
that the trial judge would have rejected the agreement had it been presented to her
prior to the trial”).

       Appellant’s contention that he would have accepted a more favorable plea
deal if he had been properly advised during plea negotiations amounts to sufficient
facts that show reasonable grounds to demonstrate that appellant could prevail on
the second prong of the Strickland test.

                                    CONCLUSION

       Appellant was entitled to a hearing on his motion for new trial, so we sustain
his first issue. We abate this appeal and remand to the trial court to conduct a
hearing on appellant’s motion for new trial on or before May 18, 2020. See
Martinez, 74 S.W.3d at 22. The judge shall see that a record of the hearing is made
and shall order the court reporter and the trial clerk to forward a transcribed record
of the hearing and a supplemental clerk’s record containing the trial court’s signed
order ruling on the motion for new trial. Those records shall be filed with the clerk
of this court on or before June 15, 2020.

       The appeal is abated, treated as a closed case, and removed from this court’s
active docket. The appeal will be reinstated on this court’s active docket when the
supplemental reporter’s and clerk’s records are filed. The court also will consider
an appropriate motion to reinstate the appeal filed by either party, or the court may
reinstate the appeal on its own motion. It is the responsibility of any party seeking
reinstatement to request a hearing date from the trial court and to schedule a
hearing in compliance with this court’s order. If the parties do not request a
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hearing, the court coordinator of the trial court shall set a hearing date and notify
the parties of the date and time of the hearing.



                                               PER CURIAM


Panel consists of Chief Justice Frost and Justices Wise and Hassan.
Publish — Tex. R. App. P. 47.2(b).




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