Jason Clifford Conway v. State ( 2015 )


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  •                                                                  ACCEPTED
    01-14-00659-CR
    FIRST COURT OF APPEALS
    HOUSTON, TEXAS
    5/4/2015 10:30:35 PM
    CHRISTOPHER PRINE
    CLERK
    No. 01-14-00659-CR                     FILED IN
    1st COURT OF APPEALS
    HOUSTON, TEXAS
    In the                 5/4/2015 10:30:35 PM
    Court of Appeals              CHRISTOPHER A. PRINE
    for the                        Clerk
    First District of Texas
    at Houston
    No. 1424502
    In the 262nd District Court
    Harris County, Texas
    JASON CLIFFORD CONWAY
    Appellant
    V.
    THE STATE OF TEXAS
    Appellee
    APPELLANT’S BRIEF
    MAITE SAMPLE
    Attorney for Jason Conway
    State Bar No.: 24052072
    405 Main St. Ste. 950
    Houston, TX 77002
    (713) 909-9685
    Fax: (713) 229-9996
    maite.m.sample@gmail.com
    ORAL ARGUMENT REQUESTED
    TABLE OF CONTENTS
    STATEMENT REGARDING ORAL ARGUMENT ....................................... i
    IDENTIFICATION OF THE PARTIES ........................................................... ii
    INDEX OF AUTHORITIES ............................................................................. iii-iv
    STATEMENT OF THE CASE ......................................................................... 1
    STATEMENT OF THE FACTS ....................................................................... 2
    SUMMARY OF THE ARGUMENT ................................................................ 5
    APPELLANT’S FIRST POINT OF ERROR -
    The trial court abused its discretion in denying Appellant’s motion for
    new trial and request for hearing on the motion for new trial. ........................... 6
    APPELLANT’S SECOND POINT OF ERROR –
    Appellant’s plea was involuntary due to ineffective assistance of
    counsel. ………………………………………………………………… .......... 14
    PRAYER ........................................................................................................... 21
    CERTIFICATE OF SERVICE .......................................................................... 21
    CERTIFICATE OF COMPLIANCE ................................................................ 22
    APPENDIX: EXHIBIT A – Trial Counsel’s Affidavit
    STATEMENT REGARDING ORAL ARGUMENT
    Pursuant to TEX. R. APP. P. 9.4(g) and TEX. R. APP. P. 39.1, oral
    argument is requested because this case presents an important question about
    coercive plea bargaining tactics used by trial counsel as well as the
    voluntariness of Appellant’s plea.
    i
    IDENTIFICATION OF THE PARTIES
    Pursuant to TEX. R. APP. P. 38.2(a)(1)(A), a complete list of the
    names of all interested parties is provided below.
    Counsel for the State:
    Devon Anderson - District Attorney of Harris County
    Alan Curry - Assistant District Attorney on appeal
    Chris Handley - Assistant District Attorney at trial
    Harris County District Attorney’s Office
    1201 Franklin St. Ste. 600
    Houston, TX 77002
    713-755-5800
    Appellant or criminal defendant:
    Jason Clifford Conway
    Counsel for Appellant:
    Kathryn Robinson Wallace- Counsel at plea
    12401 S. Post Oak Rd.
    Suite 226
    Houston, TX 77045-2020
    (713)551-8626
    Maite Sample - Counsel on appeal
    405 Main St. Ste. 950
    Houston, TX 77002
    713-909-9685
    Trial Judge:
    Hon. Denise Bradley
    262nd District Court, Harris County, Texas
    ii
    INDEX OF AUTHORITIES
    CASES
    Bruno v. State, 
    916 S.W.2d 4
    , 8 (Tex. App.—Houston [1st Dist.] 1995, pet.
    ref’d)
    Colyer v. State, 
    428 S.W.3d 117
    , 122 (Tex. Crim. App. 2014)
    Ex parte Chandler, 
    182 S.W.3d 350
    , 353 (Tex. Crim. App. 1999)(citing
    Strickland v. Washington, 
    466 U.S. 668
    , 694 (1984))
    Ex parte Moody, 
    991 S.W.2d 856
    , 857-58 (Tex. Crim. App. 1999)(quoting
    Ex parte Morrow, 
    952 S.W.2d 530
    , 536 (Tex. Crim. App. 1997))
    Ex parte Reedy, 
    282 S.W.3d 492
    , 500-01 (Tex. Crim. App. 2009)
    Ex parte Wellborn, 
    785 S.W.2d 391
    , 393 (Tex. Crim. App. 1990)
    Fimberg v. State, 
    922 S.W.2d 205
    , 207 (Tex.App.-Houston [1st Dist.] 1996
    pet. ref’d)
    Freeman v. State, 
    125 S.W.3d 505
    , 512 (Tex. Crim. App. 2003)(citing
    
    Strickland, 466 U.S. at 690
    )
    Gonzales v. State, 
    304 S.W.3d 838
    , 842 (Tex. Crim. App. 2010)
    Goodspeed v. State, 
    187 S.W.3d 390
    , 392 (Tex. Crim. App. 2005)(quoting
    Garcia v. State, 
    57 S.W.3d 436
    , 440 (Tex. Crim. App. 2001))
    Holden v. State, 
    201 S.W.3d 761
    , 763 (Tex. Crim. App. 2006).
    Jackson v. State, 
    766 S.W.2d 504
    , 508 (Tex. Crim. App. 1985)
    iii
    Martinez v. State, 
    74 S.W.3d 19
    , 21 (Tex. Crim. App. 2002)
    McGuire v. State, 
    617 S.W.2d 259
    , 261 (Tex. Crim. App. 1981)
    Mendoza v. State, 
    935 S.W.2d 501
    , 503 (Tex. App.—Waco 1996, no pet.)
    Messer v. State, 
    757 S.W.2d 820
    , 824 (Tex.App.—Houston [1st Dist.] 1988,
    pet. ref’d.)
    Munoz v. State, 
    840 S.W.2d 69
    , 74 (Tex. App. – Corpus Christi 1992, pet.
    ref’d)
    Reyes v. State, 
    849 S.W.2d 812
    , 815 (Tex. Crim. App. 1993).
    Torres v. State, 4 S.W 3d 295 (Tex. App.—Houston [1st Dist.] 1999, no pet.)
    Wallace v. State, 
    106 S.W.3d 103
    (Tex. Crim. App. 2003)
    RULES
    TEX. R. APP. P. 9.4(g)
    TEX. R. APP. P. 21.4
    TEX. R. APP. P. 21.6
    TEX. R. APP. P. 21.7
    TEX. R. APP. P. 38.2(a)(1)(A)
    TEX. R. APP. P. 39.1
    STATUTES
    TEX. CODE CRIM. PROC. ANN. art. 26.13(b)
    iv
    TO THE HONORABLE COURT OF APPEALS:
    STATEMENT OF THE CASE
    Appellant was charged by indictment with the second-degree felony
    offense of assault against a family member by impeding breathing. (CR I 7).
    He originally entered a plea of not guilty and requested a jury trial with
    punishment to be assessed by the jury in the event that he was found guilty.
    (CR I 128). Prior to the beginning of voir dire the state abandoned the
    language in the indictment alleging impeding breath and offered to abandon
    the punishment enhancement paragraphs in exchange for Appellant’s plea of
    guilty to a Pre-Sentence Investigation hearing (PSIH). (CR I 52).
    Accordingly, Appellant changed his plea to guilty and pled without an
    agreed recommendation to the court for a PSIH for the third degree felony
    offense of assault family member second offender. (CR I 144). At the
    conclusion of the PSIH, the court sentenced Appellant to ten (10) years
    confinement in the Institutional Division of the Texas Department of
    Criminal Justice (TDCJ-ID). (CR I 144). The Trial Court’s Certification of
    Defendant’s Right of Appeal dated April 30, 2014 indicates that Appellant
    has the right to appeal. (CR I 127). Appellant’s notice of appeal was filed
    with the 262nd District Court on July 27, 2014. (CR I 147).
    1
    STATEMENT OF THE FACTS
    Appellant was accused of choking Alicia Barrens on or about
    November 16, 2013. (CR I 7). Complainant and Appellant both admit that
    they had a heated argument that evening about their relationship. (RR III
    17,18) (RR III 30). But while Appellant alleges that he did nothing more
    than push Ms. Barrens after she called him a “Nigga Fuck Up” and spit in
    his face; Ms. Barrens alleges that Appellant choked her until she lost
    consciousness. 
    Id. She visited
    an urgent care clinic the next day and was
    examined by a doctor who found that Ms. Barrens had no change in voice,
    no sore throat, no difficulty swallowing, no neck pain, no muscle aches, no
    depression, no suspicious lesions, as well as a normal neck inspection,
    supple, with good range of motion, no bruising or swelling on the anterior
    neck. (CR I 113, 114). A second visit to the same clinic by complainant on
    November 21, 2013 resulted in nearly identical findings. (CR I 115, 116).
    After at least six resets Appellant’s case was set for trial in the 262nd
    District Court on April 30, 2014. (CR I 16, 19, 25, 26, 27, 120). By trial day
    Appellant had been subjected to months of plea bargaining and
    admonishments from the trial court as well as trial counsel urging him to
    plead guilty. (CR III 34,35). On trial day, trial counsel failed to object when
    the state abandoned language in the indictment, thereby changing the offense
    2
    he was being tried for. (RR II); (CR III 16). Trial counsel also withheld
    important witness information from Appellant – namely about reluctance on
    the part of the doctor who examined the complainant to testify for the State.
    (CR III 16, 17). She also gave Appellant incorrect advice about the
    procedure in a PSIH. 
    Id. Furthermore, on
    trial day trial counsel advised
    Appellant that he would surely die in prison and never see his family again if
    he was convicted at trial because life expectancies in prison are low and his
    parents would be dead in 25 years. (CR III 28). Then, with the jury panel in
    the hallway, trial counsel brought him a note signed by his parents urging
    him to take the plea. 
    Id. It was
    the totality of all of these circumstances that
    overcame his will to fight his case. At that point in the proceedings
    Appellant felt he had no other choice, so he pled guilty to assault family
    member second offender and had his case reset for a PSIH. (RR II 9) (CR I
    16, 17, 27, 28) (CR III 34, 35).
    On July 24, 2014 the trial court held the PSIH. (RR III). Contrary to
    trial counsel’s advice before his guilty plea, no cross examination of the
    complainant nor any additional witness testimony or mitigating evidence
    was presented. 
    Id. At the
    conclusion of his PSIH the trial court sentenced
    Appellant to the maximum sentence of 10 years in TDCJ-ID. (RR III 10).
    3
    Appellant filed his notice of appeal three days later on July 27, 2014
    (CR II 14). On Thursday, August 14, 2014 the undersigned counsel was
    appointed to represent Appellant on his appeal. 
    Id. Appellant filed
    and
    presented his motion for new trial with the trial court on September 29, 2014
    (CR II 3). On October 23, 2014 this court granted Appellant’s Emergency
    Motion to Abate Appeal and Remand for Hearing on Motion for New Trial
    and Permission to File Out of Time Motion for New Trial (CR II 11, 12).
    The sole ground in the motion for new trial was that Appellant’s plea
    was involuntary due to ineffective assistance of counsel. 
    Id. In support
    of
    his motion, Appellant attached an unsworn declaration detailing the
    interactions with trial counsel that led to his involuntary plea. (CR III 16,
    17). Trial counsel filed her own affidavit in response to Appellant’s motion
    and unsworn statement attached hereto as Exhibit A. (Exhibit A). The case
    was set for a live evidentiary hearing on December 16, 2014. (CR II 25).
    However, on that day TDCJ-ID did not bring Appellant to court so the
    hearing was rescheduled for December 23, 2014. (CR III 42). But on
    December 19, 2014 the trial court told Appellant and the undersigned
    counsel that she no longer wished to have a live evidentiary hearing, instead
    she would make her ruling based on her recollection of the case, as well as,
    affidavits and statements from the parties. (RR V 6). The undersigned
    4
    counsel objected to this sudden change, but the trial court overruled the
    objection. (RR V 7). Appellant and his mother prepared additional unsworn
    statements in response to trial counsel’s affidavit. (CR III 27-31).
    Additionally, Appellant wrote a letter to the trial court that was hand
    delivered to the court on January 5, 2015. (CR III 34, 35). That same day,
    the trial court denied Appellant’s request for a hearing and denied the
    motion for new trial over objection by Appellant’s appellate counsel. (CR
    III 15).
    SUMMARY OF THE ARGUMENT
    Appellant’s plea of guilty was made involuntarily as the result of
    coercion and incorrect advice by Appellant’s trial counsel as well as
    repeated coercive admonishments by the trial court. Furthermore, the trial
    court abused its discretion in denying Appellant’s motion for new trial and
    request for live evidentiary hearing. In his motion for new trial, Appellant
    alleged that his plea was rendered involuntary due to ineffective assistance
    of trial counsel. He attached an unsworn declaration explaining that trial
    counsel withheld information about the availability of an important trial
    witness. Additionally, trial counsel admonished Appellant about dying in
    prison and never seeing his family again if he did not take the State’s plea
    bargain offer. Appellant explained in his unsworn statements that the
    5
    totality of the circumstances leading up to his plea were such that his will to
    fight was overcome. Although he desired to have a jury trial, he felt forced
    to plead guilty. Appellant insists that had his trial counsel been honest with
    him about the availability of the doctor who examined the complainant, had
    she not given him incorrect information about how a PSIH would proceed,
    and had trial counsel and the trial court not coerced him through their
    repeated admonishments, he would never have pled guilty, but instead
    would have insisted on going forward with his trial.
    APPELLANT’S FIRST POINT OF ERROR
    THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING
    APPELLANT’S MOTION FOR NEW TRIAL AND REQUEST FOR
    HEARING ON THE MOTION FOR NEW TRIAL.
    STANDARD OF REVIEW FOR DENIAL OF MOTION FOR NEW
    TRIAL AND EVIDENTIARY HEARING
    Appellate courts review a trial court’s denial of a motion for new trial
    under an abuse of discretion standard by determining whether the trial
    court’s decision was arbitrary or unreasonable. Colyer v. State, 
    428 S.W.3d 117
    , 122 (Tex. Crim. App. 2014). A trial court abuses its discretion in
    denying a motion for new trial when the record could not support the view
    that the trial court’s ruling was reasonable. Holden v. State, 
    201 S.W.3d 761
    , 763 (Tex. Crim. App. 2006).
    6
    Furthermore, when reviewing a trial court’s denial of a hearing on a
    motion for new trial, an appellate court applies an abuse of discretion
    standard of review. Gonzales v. State, 
    304 S.W.3d 838
    , 842 (Tex. Crim.
    App. 2010); Reyes v. State, 
    849 S.W.2d 812
    , 815 (Tex. Crim. App. 1993).
    The reviewing court should reverse only when the trial judge’s decision was
    so clearly wrong as to lie outside the zone of reasonable disagreement. 
    Id. Review, however,
    is limited to the trial judge’s determination of whether the
    defendant has raised grounds that are both undeterminable from the record
    and reasonable, meaning they could entitle the defendant to relief. This is
    because the trial judge’s discretion extends only to deciding whether these
    two requirements are satisfied. If the trial judge finds that the defendant has
    met the criteria, he has no discretion to withhold a hearing. In fact, under
    such circumstances the trial judge abuses his discretion in failing to hold a
    hearing. 
    Gonzales, 304 S.W.3d at 842
    , citing Smith v. State, 
    286 S.W.3d 333
    , 339-40 (Tex. Crim. App. 2009).
    MOTIONS FOR NEW TRIAL
    Timely Filed
    Texas Rule of Appellate Procedure 21.4 provides that a motion for
    new trial must be filed within thirty days of the imposition of sentence.
    TEX. R. APP. P. 21.4.
    7
    Appellant filed his notice of appeal on July 27, 2014. (CR II 14). On
    Thursday, August 14, 2014 the undersigned counsel was appointed to
    represent Appellant on his appeal. 
    Id. Appellant filed
    his Motion for New
    Trial on September 29, 2014 (CR II 3). On October 23, 2014 this court
    granted Appellant’s Emergency Motion to Abate Appeal and Remand for
    Hearing on Motion for New Trial and Permission to File Out of Time
    Motion for New Trial (CR II 11, 12). Therefore, his motion for new trial
    was timely filed.
    Motion Timely Presented
    Texas Rule of Appellate Procedure 21.6 states that “Defendant must
    present the motion for new trial to the trial court within 10 days of filing it,
    unless the trial court in its discretion permits it to be presented and heard
    within 75 days from the date when the court imposes or suspends sentence in
    open court.” TEX. R. APP. P. 21.6. Appellant timely presented his motion
    through his attorney of record on September 29, 2014.
    Live hearing versus affidavit
    The right to a hearing on a motion for new trial is not absolute. 
    Reyes, 849 S.W.2d at 815
    ; Bruno v. State, 
    916 S.W.2d 4
    , 8 (Tex. App.—Houston
    [1st Dist.] 1995, pet. ref’d). The trial court is authorized to receive evidence
    “by affidavit or otherwise.” TEX. R. APP. P. 21.7. But a defendant has a
    8
    right to a hearing when the motion raises matters that are reasonable and
    cannot be determined from the record. Wallace v. State, 
    106 S.W.3d 103
    (Tex. Crim. App. 2003). This is to ensure a meaningful appeal by creating a
    record that can be reviewed. Mendoza v. State, 
    935 S.W.2d 501
    , 503 (Tex.
    App.—Waco 1996, no pet.)
    If a defendant’s motion for new trial and supporting affidavit are
    sufficient, a hearing on the motion is mandatory and a trial court that denies
    an accused a hearing abdicates its fact-finding function and denies the
    accused a meaningful appellate review. Torres v. State, 4 S.W 3d 295 (Tex.
    App.—Houston [1st Dist.] 1999, no pet.); 
    Reyes, 849 S.W.2d at 816
    , citing
    McIntire v. State, 
    698 S.W.2d 652
    (Tex. Crim. App. 1985). Additionally, a
    defendant need not establish a prima facie case in order to get a hearing.
    
    Wallace, 106 S.W.3d at 107-09
    . The motion and affidavits “must merely
    reflect that reasonable grounds exist for holding that such relief could be
    granted.” 
    Id. This is
    because “the purpose of the hearing is for a defendant
    to develop the issues raised in the motion for new trial.” Martinez v. State,
    
    74 S.W.3d 19
    , 21 (Tex. Crim. App. 2002).
    ANALYSIS
    In his motion for new trial, unsworn statements, and handwritten letter
    to the trial court, Appellant alleged that his plea was involuntary due to
    9
    ineffective assistance of counsel. (CR II 8-17, 27-29, 34,35). He explained
    that on the day of trial, trial counsel engaged in the following deficient
    conduct:
    1. Failing to object to the changes in the indictment;
    2. Withholding knowledge that the doctor who examined the
    complaining witness was reluctant to testify for the State;
    3. Telling him that life expectancy in prison was such that he would
    die before serving the minimum sentence of 25 years if found guilty at trial;
    4. Telling him, in front of his parents, that his parents would be dead
    in 25 years, so if he did not plead guilty he would never see them alive
    outside of prison;
    5. Passing Appellant a note in the holdover from his parents wherein
    his parents urged him to take the plea deal after the discussion about him
    dying in prison and his parents dying before he served 25 years in TDCJ-ID;
    and
    6. Incorrectly advising him that at the PSIH he would have the
    opportunity to cross-examine the complaining witness and present
    mitigation evidence regarding the underlying offense. 
    Id. Appellant maintains
    that, but for each of the aforementioned instances
    of deficient conduct, he would not have pled guilty and would have insisted
    10
    on going to trial. 
    Id. Furthermore, none
    of the aforementioned issues are
    determinable from the record and each, if true, would entitle Appellant to
    relief, therefore he was entitled by law to a live evidentiary hearing on his
    motion for new trial. Wallace, 
    106 S.W.3d 103
    .
    Trial counsel filed an affidavit responding to the grounds on
    Appellant’s motion for new trial. (Exhibit A). In her affidavit, trial counsel
    makes some factual assertions that are controverted by the factual assertions
    in Appellant’s unsworn declaration, but she does not address all of the
    allegations. 
    Id. Trial counsel
    offers no explanation in her affidavit about her
    failure to object to the changes in the indictment. 
    Id. She denies
    having
    prior knowledge that the doctor who treated the complainant was
    unavailable, or telling Appellant any such thing. 
    Id. Trial counsel
    never
    addresses any of the claims that she coerced Appellant to plead guilty by
    telling him that he and his family would be dead in 25 years. 
    Id. Furthermore, she
    denies passing him a note from his parents wherein they
    urged him to accept the plea offer. Finally, she says that the discussion
    about what kind of evidence and cross-examination could be presented at the
    PSIH did not take place until after the plea. 
    Id. At one
    point in the motion for new trial proceedings the trial court did
    grant Appellant’s request for a live evidentiary hearing. (CR III 25). The
    11
    trial court must have believed that the requirements for a live evidentiary
    hearing were satisfied otherwise it would not have bench warranted
    Appellant from TDCJ-ID and set the case for a live hearing. (CR III 42).
    But on December 16, 2014 Appellant was not brought to court according to
    the bench warrant issued on November 25, 2014. 
    Id. Three days
    later, when
    Appellant was finally delivered to court, the trial court arbitrarily decided to
    deny Appellant his live evidentiary hearing. (RR V 6). Nothing about the
    motion for new trial and accompanying statement changed in those days.
    Had the trial court conducted a live evidentiary hearing, Appellant
    would have been able to cross-examine trial counsel on matters controverted
    in the affidavit and the unsworn statements submitted to the court. By
    denying his motion for new trial and his request for a live evidentiary
    hearing, the trial court denied Appellant a meaningful appellate review and
    the opportunity to create a full record for his appeal in the event the trial
    court did go on to deny the motion for new trial. In so doing, the trial court
    abused its discretion.   
    Gonzales, 304 S.W.3d at 842
    ; Torres, 4 S.W 3d 295;
    
    Reyes, 849 S.W.2d at 816
    .
    Furthermore, it was an abuse of discretion to deny Appellant’s motion
    for new trial altogether. The trial court stated that it had an independent
    recollection of the plea and the parties therefore it could make credibility
    12
    determinations and make a final decision on the motion for new trial based
    on affidavits alone. (CR V 6). In support of this assertion, the trial court
    stated: “And actually, unlike most cases, I had the opportunity – we had a
    full hearing regarding issues of guilt/ innocence. I believe Mr. Conway
    testified at that hearing. So, I’m very familiar with the attorney that was
    representing the Defendant as well as the proceedings we are discussing this
    morning.” 
    Id. The significance
    of the trial court’s statement is that there is
    no evidence of such a hearing anywhere in the record. Appellant did not
    testify at any such hearing because one never took place, nor did he testify at
    his PSIH. (RR III). Therefore, the trial court clearly did not have an
    independent recollection of the plea or the parties. Clearly, the trial court
    made its decision without any actual memory or knowledge of Appellant’s
    case. This type of reckless decision-making is exactly the type of arbitrary
    and unreasonable action that constitutes an abuse of discretion. 
    Holden, 201 S.W.3d at 763
    .
    CONCLUSION
    Accordingly, Appellant respectfully asks that this court rule that the
    trial court’s denial of his motion for new trial and request for a hearing was
    an abuse of discretion and reverse and remand to the trial court for a new
    trial.
    13
    APPELLANT’S SECOND POINT OF ERROR
    APPELLANT’S PLEA WAS INVOLUNTARY DUE TO THE
    INEFFECTIVE ASSISTANCE OF COUNSEL
    Appellant’s plea was involuntary because of coercion, confusion, and
    unconstitutionally ineffective assistance of counsel. But for trial counsel’s
    erroneous advice and pressure from the trial court, Appellant would not have
    pled guilty to the felony charge of assault family member second offender,
    but would have insisted on going forward with his jury trial.
    STANDARD OF REVIEW FOR INEFFECTIVE ASSISTANCE
    OF COUNSEL AND INVOLUNTARY PLEA
    A guilty plea must be freely, knowingly, and voluntarily entered.
    TEX. CODE CRIM. PROC. ANN. art. 26.13(b) (Vernon 1989). The
    voluntariness of a plea is determined by the totality of the circumstances.
    Munoz v. State, 
    840 S.W.2d 69
    , 74 (Tex. App. – Corpus Christi 1992, pet.
    ref’d). An Appellant has a Sixth Amendment right to the effective
    assistance of counsel in guilty-plea proceedings. Ex parte Reedy, 
    282 S.W.3d 492
    , 500-01 (Tex. Crim. App. 2009). To obtain relief for ineffective
    assistance of counsel under Strickland v. Washington, Appellant must show
    that his counsel’s performance was unconstitutionally deficient and “that
    there is a ‘reasonable probability’ - one sufficient to undermine confidence
    in the result - that the outcome would have been different but for his
    14
    counsel’s deficient performance.” Ex parte Chandler, 
    182 S.W.3d 350
    , 353
    (Tex. Crim. App. 1999)(citing Strickland v. Washington, 
    466 U.S. 668
    , 694
    (1984)).
    Specifically, when a person “challenges the validity of a plea entered
    upon the advice of counsel, contending that his counsel was ineffective, ‘the
    voluntariness of the plea depends on (1) whether counsel’s advice was
    within the range of competence demanded of attorneys in criminal cases and
    if not, (2) whether there is a reasonable probability that, but for counsel’s
    errors, he would not have pleaded guilty to the charged offense and would
    have insisted on going to trial.’” Ex parte Moody, 
    991 S.W.2d 856
    , 857-58
    (Tex. Crim. App. 1999)(quoting Ex parte Morrow, 
    952 S.W.2d 530
    , 536
    (Tex. Crim. App. 1997)); 
    Reedy, 282 S.W.3d at 500
    .
    A criminal defense attorney “must have a firm command of the facts
    of the case” before he or she may render reasonably effective assistance of
    counsel. Ex parte Wellborn, 
    785 S.W.2d 391
    , 393 (Tex. Crim. App. 1990).
    Counsel has a duty to provide advice to his client about what plea to enter,
    and that advice should be informed by an adequate investigation of the facts
    of the case. 
    Reedy, 282 S.W.3d at 500
    . When counsel’s representation falls
    below this standard, it renders any resulting plea involuntary. 
    Id. A claim
    of ineffective assistance of counsel must be determined upon
    15
    the particular circumstance of each individual case. Jackson v. State, 
    766 S.W.2d 504
    , 508 (Tex. Crim. App. 1985). Strategic or tactical
    considerations are not considered deficient unless “the challenged conduct
    was ‘so outrageous that no competent attorney would have engaged in it.’”
    Goodspeed v. State, 
    187 S.W.3d 390
    , 392 (Tex. Crim. App. 2005)(quoting
    Garcia v. State, 
    57 S.W.3d 436
    , 440 (Tex. Crim. App. 2001)). But when no
    reasonable trial strategy could justify trial counsel’s conduct, the counsel’s
    performance falls below an objective standard of reasonableness as a matter
    of law. Freeman v. State, 
    125 S.W.3d 505
    , 512 (Tex. Crim. App.
    2003)(citing 
    Strickland, 466 U.S. at 690
    ).
    ANALYSIS
    Repeated Admonishments
    In Appellant’s case, trial counsel and the trial court pressured and
    coerced him into making an involuntary plea. (CR II 8-17, 27-29, 34,35). In
    his unsworn declaration Appellant alleges that the repeated admonishments
    by the court led him to feel pressured and coerced into a guilty plea. 
    Id. He recalls
    being brought out of the hold over on at least four occasions for
    admonishments by the trial court. 
    Id. Appellant asserted
    his innocence and
    his desire to go to trial every time, but the repeated admonishments from the
    court eventually led him to feel that he had no choice but to plead guilty. 
    Id. 16 Had
    the court refrained from repeatedly admonishing Appellant, he would
    have felt free to go forward with his trial. 
    Id. Appellant explains
    that his
    trial counsel also pressured him into pleading guilty. 
    Id. He explains
    that
    trial counsel insisted he plead guilty despite his repeated assertions of
    innocence and his desire to go to trial. 
    Id. Trial counsel
    herself admits that
    Appellant always expressed an unwavering desire to go to trial. Exhibit A.
    She admits that she did not believe he would ever plead guilty. 
    Id. Trial counsel
    ’s observation lends credence to Appellant’s declaration that his last
    minute plea was made out of duress after being coerced by all of the
    admonishments he received.
    Erroneous PSIH Advice
    If an attorney conveys erroneous information to his or her client, and
    the client enters a plea of guilty based on that misinformation, the plea is
    involuntary. See Fimberg v. State, 
    922 S.W.2d 205
    , 207 (Tex.App.-Houston
    [1st Dist.] 1996 pet. ref’d). Furthermore, it has been held that a conviction
    cannot be sustained when a plea of guilty has been motivated by significant
    misinformation conveyed by the defendant’s counsel or some other officer
    of the court. McGuire v. State, 
    617 S.W.2d 259
    , 261 (Tex. Crim. App.
    1981); Messer v. State, 
    757 S.W.2d 820
    , 824 (Tex.App.—Houston [1st Dist.]
    1988, pet. ref’d.).
    17
    Trial counsel gave erroneous advice that led to Appellant’s
    involuntary plea. She assured Appellant that he could present text messages
    from the complainant during his PSIH hearing to call her credibility into
    question. (CR II 8-17, 27-29, 34,35). Trial counsel also assured Appellant
    that he could cross-examine the complainant during the PSIH regarding
    issues determinative of guilt or innocence. 
    Id. Both of
    these assurances
    were critical to Appellant entering a guilty plea, but neither of these things
    actually happened during Appellant’s PSIH, nor were they legally required
    to have happened. 
    Id. These instances
    of misinformation alone are
    sufficient to satisfy the standards set out in Fimberg, McGuire, and Messer.
    Fimberg v. 
    State, 922 S.W.2d at 207
    ; 
    McGuire, 617 S.W.2d at 261
    ; 
    Messer, 757 S.W.2d at 824
    .
    Failing to Object
    Appellant further alleges that when the State abandoned the impeding
    breath language in the indictment on trial day he was surprised and wanted
    additional time before trial to prepare a defense. (CR II 8-17, 27-29, 34,35).
    Trial counsel failed to object to the abandonment of the impeding breath
    language against Appellant’s wishes. 
    Id. Appellant insists
    that the change
    in the indictment surprised him and trial counsel’s failure to object
    prejudiced him by denying him the opportunity to conduct a full
    18
    investigation and develop his defense. 
    Id. Trial counsel
    ’s failure to object
    was another factor in the totality of the circumstances that led him to feel as
    if he had no choice but to plead guilty. 
    Id. Withholding Important
    Case Information
    Trial counsel withheld from Appellant that the doctor who examined
    the complainant would not be testifying for the State until after his plea.
    (CR II 8-17, 27-29, 34,35). According to Appellant, trial counsel waited
    until after his plea to tell him that the doctor was no longer cooperative with
    the State. 
    Id. Had Appellant
    known this information, he would never have
    pled guilty. 
    Id. Instead, he
    would have requested a continuance to subpoena
    the doctor as a defense witness. 
    Id. According to
    Appellant, trial counsel
    admitted that she withheld this information because she knew he would not
    have pled guilty if he had known that the doctor was not going to testify at
    trial. 
    Id. This omission
    alone satisfies the standards set out in Fimberg,
    McGuire, and Messer. Fimberg v. 
    State, 922 S.W.2d at 207
    ; 
    McGuire, 617 S.W.2d at 261
    ; 
    Messer, 757 S.W.2d at 824
    . There is no reasonable trial
    strategy that could justify trial counsel’s conduct, therefore counsel’s
    performance fell below an objective standard of reasonableness as a matter
    of law. Freeman v. State, 
    125 S.W.3d 505
    , 512 (Tex. Crim. App.
    2003)(citing 
    Strickland, 466 U.S. at 690
    ).
    19
    Life Expectancy Comments
    Trial counsel told Appellant on his trial day that if he did not plead
    guilty, he would die in prison because life expectancies are low for inmates
    and his minimum punishment after trial would be 25 years TDCJ-ID. (CR
    III 28). She also told him, in front of his parents, that his parents would be
    dead by the time he served his sentence and that he would never see his
    parents outside of prison. (CR III 27-31). Finally, trial counsel brought a
    letter to Appellant from his parents urging him to plead guilty and not go to
    trial. (CR II 8-17, 27-31, 34, 35). This too led to Defendant feeling coerced
    and pressured to plead guilty. 
    Id. There is
    no reasonable trial strategy that
    could justify trial counsel’s conduct therefore counsel’s performance fell
    below an objective standard of reasonableness as a matter of law. 
    Freeman, 125 S.W.3d at 512
    .
    CONCLUSION
    The totality of trial counsel’s representation fell below the objective
    standard of reasonableness demanded of reasonably competent counsel.
    
    Strickland, 466 U.S. at 690
    . Such performance undermines confidence in
    the voluntariness of Appellant’s guilty plea. Ex parte 
    Chandler, 182 S.W.3d at 353
    . Appellant would never have pled guilty had he not received such
    20
    deficient representation from trial counsel, therefore his plea was rendered
    involuntary by the ineffective assistance of counsel.
    PRAYER
    Appellant prays that this court finds that the trial court abused its
    discretion in denying his motion for new trial and request for hearing, and
    that his plea of guilty was involuntary due to ineffective assistance of
    counsel. Accordingly, Appellant asks that this court reverse and remand this
    cause to the trial court for a new trial.
    Respectfully submitted,
    /s/ Maite Sample
    Attorney for Jason Conway
    405 Main St. Ste. 950
    Houston, TX 77002
    SBN 24052072
    (713) 909-9685, (713) 229-9996 (fax)
    maite.m.sample@gmail.com
    CERTIFICATE OF SERVICE
    This is to certify that a copy of the foregoing instrument has been delivered
    to the attorney for the State at the following email address:
    curry_alan@dao.hctx.net on this the 4th of May 2015.
    21
    CERTIFICATE OF COMPLIANCE
    I certify that this document contains 5,282 words (counting all parts of the
    document). The body text is in 14 point font.
    /s/ Maite Sample
    Attorney for Jason Conway
    405 Main St. Ste. 950
    Houston, TX 77002
    SBN 24052072
    (713) 909-9685, (713) 229-9996 (fax)
    maite.m.sample@gmail.com
    22
    EXHIBIT A
    23
    24