                                                                                                           ACCEPTED
                                                                                                       01-14-00924-CR
                                                                                            FIRST COURT OF APPEALS
                                                                                                    HOUSTON, TEXAS
                                                                                                  8/14/2015 3:32:32 PM
                                                                                                 CHRISTOPHER PRINE
                                                                                                                CLERK

                                      No. 01-04-00924-CR

____________________________________________________________________________
                                                                 FILED IN
                                                             1st COURT OF APPEALS
                                                                 HOUSTON, TEXAS
                               IN THE COURT OF APPEALS
                                                             8/14/2015 3:32:32 PM
                                                             CHRISTOPHER A. PRINE
                  FOR THE     FIRST DISTRICT OF TEXAS AT HOUSTON Clerk

 ____________________________________________________________________________


                                   Ex Parte Nii-Otabil Nelson

 ____________________________________________________________________________

                           On Appeal from the 182nd District Court
                                    Harris County, Texas
                              Trail Court Cause No. 1372073-A

     ____________________________________________________________________________


ANDRE EVANS & ASSOCIATES, PLLC
Andre D. Evans (SBOT 24082970)
3003 South Loop West Set. 108
Houston, Texas 77054
Telephone:    (832) 941-1282
Facsimile:    (646) 304-1054


Attorney for Appellant



                         APPELLANT’S MOTION FOR REHEARING


TO THE HONORABLE COURT OF APPEALS:
       Nii-Otabil Nelson, Appellant, petitions this Court for a rehearing in the above-

styled matter after an unpublished opinion, dated June 30, 2015, which affirmed the trial

court’s order denying appellant’s habeas relief.
                       POINTS RELIED ON FOR REHEARING

1.     The trial court abused its discretion when failing to include defense counsel’s
       misstatement of law in its finding of facts.
2.     The court of appeals erred in holding that Appellant cannot establish the second
       prong of the Strickland test.
3.     Appellant’s plea was not voluntary, and the Court of Appeal’s upholding of the
       trial court’s ruling is the fruit of a violation of his Sixth Amendment right to
       counsel.


                                       ARGUMENT

A.     The trial court abused its discretion when failing to include defense counsel’s
       misstatement of law in its findings.
       A trial court abuses its discretion when it acts arbitrarily and unreasonably or

without reference to guiding principles. Lyles v. State, 850 S.W.2d 497, 502

(Tex.Crim.App.1993). Here, Appellant was incorrectly informed by his trial counsel that

“he would have thirty days to come back and go over all the subpoenaed records that he

had or to correct any problems.” See RR 5:23-25; 6:1-4. Appellant’s trial counsel’s

statement was both, a factual and legal material misrepresentation that the Appellant

relied upon in making plea of nolo contedere. RR 6:1-2.

       In the context of pleas, the focus of the prejudice inquiry is “on whether counsel’s

constitutionally ineffective performance affected the outcome of the plea process.” Hill v.

Lockhart, 474 U.S. at 59, 106 S. Ct. at 370. It is clear from the record that the attorney

for the State, Celeste Byrom, was under the impression that no affirmative acts done by

the trial counsel were sufficient to establish an ineffective assistance of counsel claim.

See Record of August 28, 2014 Oral Writ Hearing at 7 (14-17).
       Byrom: “Whether or not the defendant believes that Mr. Simmons did X, Y, and
       Z is not the issue. The issue here is was Mr. Simmons fully prepared for trial.”
       RR 7:14-17.
       Byrom's statements were misstatements of the law, which went without objection

in open court and were seemingly relied upon in the trial court’s decision.

       It is axiomatic that, "to be constitutionally valid, a plea of guilty must be

knowingly and voluntarily made." United States v. Brown, 117 F.3d 471, 473 (11th Cir.

1997). And "a guilty plea is not knowingly and voluntarily made when the defendant has

been misinformed" as to a crucial aspect of his case. Id. Appellant’s plea was rendered

involuntary because Appellant was unconstitutionally induced into making a plea of nolo

contendere, by trial counsel’s misrepresenting a material aspect of Appellant’s rights

following the plea.

       While, it has been long held that a defendant’s reliance upon a defense lawyer’s

material misrepresentations made to the defendant during the plea stage is grounds to

render a plea involuntary due to ineffective assistance of counsel, the prosecutor, Celeste

Byrom, in the present case blatantly disregarded such as a basis for Appellant’s claim.

Thus, Byrom’s actions were unreasonable, and prejudicial. Accordingly, the trial court’s

failure to consider, arguably the most compelling accusation in support of Appellant’s

ineffective assistance of counsel claim, is prejudicial and amounts to an abuse of

discretion because it is a departure from the applicable legal inquiry.

       Reversal is required because the trial court’s failure to consider, or to provide a

basis for rejection of Appellant’s assertion that he was misled by his trial counsel about a

material aspect of his plea, which is grounds for a ineffective assistance of counsel
determination, is a gross deviation from the administration of justice; a departure from

the legal question at hand, and a willful and wanton violation to Appellant’s sixth

amendment right to counsel.

       Further, it is apparent from the trial court’s finding of facts and conclusion of law

that it viewed the evidence in a light most favorable to the Appellant’s defense counsel,

and not the Appellant. The trial court gave greater reverence to trial counsel’s affidavit,

which failed to refute Appellant’s damning allegation that he misinformed the Appellant

on his rights following the plea; when both, the Appellant’s and Trial Counsel’s affidavits

shared the same evidentiary basis. Therefore, the trial court further abused its discretion

by acting arbitrarily, unreasonably and without reference to guiding principles.

B.     The court of appeals erred in holding that Appellant cannot establish the
       second prong of the Strickland test.
       The appellate court appropriately applied the Strickland test, in determining

whether Appellant’s plea was involuntary, however the Court’s findings were saturated by

the lower court’s failure to uphold Appellant’s constitutional rights. In order to satisfy the

two-pronged Strickland test to be entitled to relief from a guilty plea, appellant must

show by a preponderance of the evidence that (1) trial’s counsel’s performance fell below

the objective standard of reasonableness and (2) there is a reasonable probability that, but

for counsel’s unprofessional errors, the result of the proceeding would have been

different. Strickland v. Washington, 466 U.S. at 687-88, 694, 104 S. Ct. at 2064, 2068;

see also Thompson v. State, 9 S.W.3d 808, 812 (Tex. Crim. App. 1999).
       Presently, our focus is on the second prong, reasonable probability. A “reasonable

probability” that the outcome would have been different for purposes of an ineffective

assistance of counsel claim is a probability sufficient to undermine confidence in the

outcome. Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005).

       In Andrews, the court found that the prosecutor’s misstatement of the law

regarding the defendant’s punishment, and the defense counsel’s failure to object to, or

correct the misstatement, was sufficient enough to undermine the confidence in the

outcome. In the present case, similar to Andrews, the outcome relied upon multiple

misstatements of the law. Appellant was incorrectly informed by his trial counsel that

“he would have thirty days to come back and go over all the subpoenaed records that he

had or to correct any problems.” Also, the attorney for the State, Celeste Byrom, argued

that no affirmative acts done by the trial counsel were sufficient to establish an ineffective

assistance of counsel claim. See Record of August 28, 2014 Oral Writ Hearing at 7

(14-17).

       Thus, the defense counsel’s affirmative misstatement of the law to Appellant, and

not mere omission, independently or combined with the State’s improper recitation of the

legal question, must certainly be sufficient to undermine the confidence in the outcome of

the plea process. Therefore, reversal is required because Appellant’s reasonable

probability burden has been met.

C.     The Court of Appeal’s upholding of the trial court’s ruling is the fruit of a
       violation of his Sixth Amendment right to counsel.
        As stated earlier, it is axiomatic that, "to be constitutionally valid, a plea of guilty must be

knowingly and voluntarily made." United States v. Brown, 117 F.3d 471, 473 (11th Cir. 1997).

And "a guilty plea is not knowingly and voluntarily made when the defendant has been

misinformed" as to a crucial aspect of his case. Id.

        This Court’s upholding of the lower court’s ruling is the fruit of the lower court’s

violation of Appellant’s Sixth Amendment right to counsel. When reviewing a trial court’s ruling

on a habeas corpus application, the reviewing court must view the evidence presented in the light

most favorable to that ruling, the court must uphold that ruling absent an abuse of discretion. See

Ex parte Mandujuano, 2013 WL 4007801, at *3 (citing Ex parte Ali, 368 S.W.3d at 831). The

reviewing court “affords almost total deference to at trial court’s finding of facts in habeas

proceedings, especially when those findings are based upon credibility and demeanor.” Ex parte

Amezquita, 223 S.W.3d 363, 367 (Tex. Crime. App. 2006). Because this Court is beholden to

this standard, its upholding of the trial court’s ruling is a direct result of the trial court’s abuse of

discretion in its failure to include Appellant’s most compelling assertion in its findings of facts.

A failure to reverse the ruling of the trial court will mean a failure to protect Appellant’s

constitutional rights, both on the trial, and appellate level.

                                           PRAYER

        For these reasons, Appellant, requests that this court grant this motion for

rehearing, withdraw its prior opinion and judgment, and issue an opinion and judgment

reversing the trial court’s judgment. Appellant also requests a new trial or any other relief

to which he may be entitled.
                                                    Respectfully Submitted,


                                                    ANDRE EVANS & ASSOCIATES, PLLC
                                                    3003 South Loop West Set. 108
                                                    Houston, Texas 77054
                                                    Telephone:    (832) 941-1282
                                                    Facsimile:    (646) 304-1054


                                                    By: /s/ Andre D. Evans
                                                    Andre D. Evans
                                                    (SBN 24082970)
                                                    andre@attorneyandreevans.com
                                                    Attorney for Appellant




                             CERTIFICATE OF COMPLIANCE

       I certify that this document was produced on a computer using Microsoft Word 2007 and

contains 1,636 words, as determined by the computer software’s word-count function, excluding

the sections of the document listed in Texas Rule of Appellate Procedure 9.4(i)(1).



                                                            By: /s/ Andre D. Evans
                                                            Andre D. Evans
                                                            Attorney for Appellant
                               CERTIFICATE OF SERVICE

       I certify that a copy of Appellant’s Motion for Rehearing was served on the State of Texas

by and through his counsel of record, by electronic transmission on August 14, 2015.


                                                           By: /s/ Andre D. Evans
                                                           Andre D. Evans
                                                           Attorney for Appellant
