~7 3 Qj^^f.ifomTGfepmm^Lhfm J MAR 23 2015
INMATE GNSWCRN DECLARATION
My name is Willie Henry/ III and I am incarcerated in the Wyhfv Sgifi, Clerk 810 Fm 2821 Huntsville, Texas, 77349. My Tdc# is 1550834. I am over the age • of IS years old and I am competent to give this statement. I have personal
knowledge that every statement contained herein (affidavit, motions) are
true and correct. And that the documents included are true and correct •.-.. copies. MOTION D@M|P The motions filed are not for delay nor to waste resourcegftfeut axeserious and meritorious grounds for which I have no other remedy. On Aug ust 27,2007,.! entered a no contest plea to aggravated assault. However,
I was never notified about the element of serious bodily injury. I entered th.-; plea agrramant undar misleading advice of trial counsel. I.Counsel told me that aggravted assault was a lesser included offense to the grand jury's charge of ,zax assault- (?.C- 22.011(C)) ' 2.Counsel told me that I could not have a jury trial on the original off ense of sex assault, because I ran out of money- 3-Counsel told rae that I was not allowed to have any witnesses in rcy favor. 4. I was never made aware of the re-indictment which the docket sheet shows as being done on September, 2006- b-Counsel failed toiinform ma that the case-was set for trial on 3-27-2007.
I only found out the weekend before that Monday through a phone call from uiy bond coEpany. 6.Counsel failed to do any investigation of witnesses cr victim. 7. I made it known to the trial court that 1 wanted a jury trial but was coerced into a plea because I ran out of money to pay lawyer. 8.1 am innocent of the offense as pleaded to and also/ grand jury offense as alleged in indictments. I was never informed of my right to be tried on offenses only alleged by a grand jury screening of charaes. 9.Had I been .informed of all of these facts and riqhts, I never would have entered the plea-
I Willie Henry, III, do declare under the penalty of perjury that every statement is true and correct and that I have reviewed each statement contained in the notion and affidavit.. I ask this court to accept this unsworn- initiate declaration in place of a notorized affidavit.
?iu 3e--
Dau
iStOlS'M
NO.
WILLIE HENRY/III IN THE COURT OF
PETITIONER CRIMINAL APPEALS §
AUSTIN,TEXAS
§
STATE OF TEXAS §
MOTION TO RESET TIME TO FILE MOTION FOR,NEW TRIAL
To Honorable Judge(s) OF SAID COURT:
I, Willie Henry,III, comes filing pro se, this motion to
reset the time to file a motion for new trial and to have this
Honorable Court to order a hearing in the trial court in order
to determine during that evidentiary hearing if the motion for
a new trial should be qranted.
I .
This motion comes from trial court no. 98575, in the 252nd
District Court of Jefferson County, Texas. The 9th court of
Appeals, Jefferson county affirmed the conviction in (09-09-0002
9-CR) I just recently sent a motion to the 9th COA asking that
the appeal be abated but was told that since there was no appeal
pending, that no action would be taken. (Exhibit )
II .
Pro se petitioner, therefore presents to this Court the fol-
lowinq requests:
l.That this Honorable Court apply rule 2 of the TX. Rules of
Appellate Proc., which allows the suspension of rules of op
eration for "qood Cause" in a particular case, and order a
different procedure; as long as it does not suspend a provision in the Code of Criminal Procedure, or to alter the time to per
fect an appeal in a 'Civil1 case. Oldham v. St., 898 sw2d 461;
5 sw3d 840
II.
Good cause exists as exception to time limitation for fil
ing of motion for new trial where defendant is without counsel
durinq critical staqe of prosecution, such as in this present
case. Counsel was needed in order to file the motion for new
trial after the adjudication of guilt on the offense of aqqra-
vated assault causing serious bodily injury. The date of adju
dication was January 12, 2009. The motion for new trial was then
due within 30 days. February 11,2009.
Mr. Kevin Laine, who had been retained durinq the revoca
tion proceedinqs did not remain as the attorney. He drew up the
notice of appeal and mailed that form to me, which I then signed
dated, and forwarded to the clerk of the court. As shown by the
docket sheet (ex ), the court appointed Mr. Doug Barlow as
appeal attorney on January 26, 2009. Mr. Barlow had until the
11th, day of February to file the motion for new trial, but fail
-ed to do so. In fact, he failed to perform any of his duties
listed under the Tx . CCP. art. 26.04 (j)(l,2). Because he neve
contacted me by any means, there has been great prejudice to
me. Substantive Due process violation has transpired because I
had no counsel to present the claims of ineffective assistance
of counsel and the involuntary plea to the aggravated assault of
-fense.
The plea was involuntary due to the IAC and there was need
to develop the record for an appeal; and that could only be done
N\,-3l
through a hearinq on a motion for new trial. There was not any time before the plea hearinq, that the element of serious bod
ily injury revealed to me by anyone. It was only added at the plea hearing to an indictment which I had no knowledqe of. The grand jury indictment that I knew about contained no allegation of violence or injury. (Cause no. 86400) Nor was the legally de
fined term included in the plea papers which I was made to sign
before the hearinq.
Trial counsel, Mr. Samuel, also gave me incorrect informa
tion that aggravated assault was a lesser-included offense of sexual assault as alleged by the qrand jury. But most impor
tantly, he told me that I had to come up with more money imm ediately if I wanted to exercise my right to a jury trial which I certainly requested. My waivers to jury trial and the
other Constitutional Riqhts were involuntary and the record
reflects that the trial court was aware of that fact. (Report
er's Record Vol. 5, p. 14;PSI)
These issues should have been brought up in the motion for
new trial phase and were not because counsel which had been app
ointed to represent me never at any time made contact with me to discuss what happened. He was then replaced when my family poole
their resources toqether and retained Mr. Hugh O'Fiel. Mr. Douq
Barlow was replaced on February 17,2009. After the time to file
a motion for new trial had expired.
"Where defendant was deprived of counsel during period in which motion for new trial was required to be filed, mandate would iss -ue disposing of appeal so that defendant could file motion for new trial." Rule 31(a); Cox v. St., 797 sw2d 958
III.
It will be shown that durinq this critical stage of beinq able to file the motion for new trial, I was without the Con
stitutionally guaranteed assistance of counsel in order to file
the motion within the 30 days which is required under the rules
of appellate procedure. (Procedural and Substantive requirements
are found in the TX. Rules of App. Proc. § 21.1 - 21.9)
IV.
The 9th COA found that in appeal no 09-09-00029-CR, that the'
issues raised by counsel on appeal were not coqnizable on an
appeal from a plea bargain case and they did not have the jur
isdiction to consider the IAC claims which were raised bv the
counsel on appeal. It must be stated that Mr. O'Fiel, appeal
counsel never contacted me nor responded to my letters either.
The Honorable Court of Appeals affirmed the conviction on the
appeal, but I strongly believe that the appeal should have been
dismissed and not affirmed, when the court found that the issues
could not be presented on appeal. See: Phynes v. St., 828 sw2d
1,2; CCP.art § 42.12 et seq
V.
In support of this motion, I have included affidavits and
the docket sheets from the trial court; as well as a short brief
VI .
I, Willie Henrv, III, Prays, that this Honorable Court would
consider and grant this motion to apply Rule 2, and without ov
erturning the trial court's conviction, remand to the trial
court for an evidentiary hearing, so that I can file a motion
for new trial and to have counsel appointed durina a hearinq on
the said motion.
NY-H
RESPECTFULLY .SUBMITTED,
WILLIE HENRY,ITT PRO SE
Date
TDC# 1550834 Wynne Unit 810 FM 2821 Huntsville, TX. 77349
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PETITIONERS BRIEF IN SUPPORT OF MOTION
On Auqust 27, 2007, petitioner entered a plea to aggravated assault pursuant to a plea baraain. The Grand Jury originally indicted him with the offense of sexual assault § 22.011(E) (Indicted in July term 2005;No.86400) It was in his knowledge that this was the only indictment in existance. How ever, the docket sheet shows that a re-indictment was issued in September,
2006. Petitioner had no knowledae of a reindictment because he had never been
brought to court and arrainaned on the new indictment. This court will find that petitioner never signed the resettinq from the indictment being reiss ued under cause no. 98575.
On January 12, 2009, the trial court revoked the deferred adiudication and adjudicated quilt on the offense of agqravated assault causinq serious bodily iniury. He was sentenced to 18 years confinement in the TDCJ Inst. Division.
STATEMENT OF FACTS
Mr. Audwin Samuel was the trial attornev in the case. He was hired in
Sept. ,2005, to represent Henrv in cause no. 86400. Mr. Samuel was given a list of witnesses and their phone and address numbers. He never contacted
any of them nor interviewed the alleged victim. In Sept. 2006, the reindict ment was issued under cause no. 98575, but Mr. Samuel never informed him, nor
was he ever arraiqned on the new charge.
After the court adjudicated guilt, Henry's attorney for revocation, Mr. Kevin Laine, mailed Henry the notice of appeal to sign and forward to the clerk. (January 22,2009) The trial court then appointed Mr. Doug Barlow for the appeal. Mr. Barlow never made any contact with Henrv. (Appointed on Jan. 26th and released on Feb. 17th, 2009) The Feb. 17,2009 date was about
six (6) days later than the motion for new trial needed to be filed. Henrv, [was without any assistance of counsel durinq the 30 dav period in which to file the much needed Motion for New trial.This was a critical staae of proceedinqs . In Cox v. St., 797 sw2d 958, the court held that "where defen dant was deprived of counsel during the period in which motion for new trial was required to be filed, mandate would issue disposing of appeal so that defendant could file motion for new trial." Rule 2; Rule 31(a) R.App. Proc.
The Tx. R. App.Proc. 21.1 - 21.9 implicate procedural and substantive due process rights. In this case, defendant's substantive right to due pro cess has been violated. See; Sena v. New Mexico St. Prison, 109 F.3d 652
^
The trial court accepted an involuntary plea and committed a funda mentally unfair act in doinq so. As in this present case, the trial court accepted a plea which it knew or should have known was involuntary, and then because of IAC at the time to file the motion for new trial, Henry, has been unable to have any meaninqful review or hearinq on the issue. See; Massinqil v. St., 8 sw3d 733 "In order to obtain meaningful appeal, sometimes a defen dant must prepare, file, present, and obtain a hearing on a motion for new trial; it is unreasonable to require him to do this without assistance."
Henry, filed pro se, habeas corous 11.07, and earnestly attempted to state claims in the only way he knew how, but since he is not an attorney nor did he have assistance of counsel, the writ was denied. These were issues
claimed by Henrv on the writ application but obviously, He had no clue as to how to do a writ application or memorandum. Without counsel, the pro cess was in vain and falwed. When it is the State's process to bring IAC ~.~; claims to review without assistance of counsel denies meaningful review, the State has to bear resoonsibilititv. Martinez v. Ryan, 132 S.CT. 1309; Trevino v. Thaler, 133 S-CT. 1911
Herein, it is contended that he was without effective assistance of counsel at the plea baraain phase, the appeal phase, and the motion for new trial, phase. These are all critical chases in which there was lac or no Coun sel and thus the violation of substantive due process riqhts. As a result, he has been left with no adequate remedy, except to ask this court to apply Rule 2 of the Rules of App. Proc. and to remand to the trial court for a hearina to determine if a new trial is warranted. It has always been Henry's desire to file claims of IAC durina the plea barnain phase and present the claim that the plea of no contest was entered involuntarilv due to IAC.
DENIED COUNSEL AT CRITICAL STAGE
After review, this Honorable Court will see that Petitioner did not de lay in presentina his claims of IAf"1 nor was there delay in presentinq the in voluntary plea claim. Petitioner's wife, mother, sister, and niece pooled resources toaether to hire Mr. O'Fiel as appeal attorney after the revocation and he filed an appeal in the 9th pda (09-09-00rPQ-CR). However, he never contacted Henrv to find out what went on and aet an accurate nicture. He neerf -ed to develon the record to file an appeal. Counsel was also ineffective
by filina on appeal, issues which were not appealable. C.CP.art.42.12 et seq; phynes v. St., 828 sw2d 1,2; Donovan v. ST., 68 sw3d 633. Voluntariness
&~d~
of a olea may be raised by a motion for new trial an^ habeas corpus for re lief of adjudication but not on appeal.
Due to appointed counsel, Mr. Barlow's failure to carrv out his duties
under CC.p. § 26.04(j)(1,2) which states that an attorney is expected to make everv reasonable effort to contact the defendant not later than the firs*-
workinq dav after the date on which the attornev is appointed, and represent
the defendant...until aquitted..- or the attornev is relieved of his duties bv the court or replaced by other counsel after a findinq of aood cause is
entered on the record.
The Docket sheet will reflect that fhe date of adjudication was 1-12-09,
which aave until c. 2-11-09, to file a motion for new trial. Mr. Rarlow was
appointed on 1-26-09 and not released until 2-17-09 at which time the time to
file the motion for new trial had expired with no assistance of counsel durin3 that critical phase.
This honorable court of criminal appeals has the power to remand so that a motion for new trial can be filed as an out of time motion. Anr) has the pow
-er to order an evidentiary hearinq. (Full and Fair Hearinnl
Caldwell v. Thaler, 770 F. Supp. 2d 849"The 14th Amendment to the due pr -ocess clause of the United States Constitution guarantees a criminal app ellant the right to counsel in his first appeal of right." In the case of Henrv, he has been denied that rinht quaranteerl bv the U.S. Constitution. Fur -ther, he has been subjected to 18 years, (9% served) for a crime which never took place, since there was no serious bodily iniurv, pursuant to an in voluntary plea. The DA's records will show that the alleaed victim never made a claim as to iniurv nor sexual encounter beinn of an assaultive na
ture bv physical force. A hearina must be ordered in order to provp the
claims.
PRAYER
Petitioner prays that after consideration and liberal interpretation of the motion and brief, alonq with the documents presented; that this Court wil
suspend rules under Rule 2 and remand for a hearinq in the trial court. He al -so prays that the appeal is dismissed and not affirmed(09-09-0002Q-CR). If remanded that counsel is appointed because he is indiqent and only re
ceives about $20 per month, and that a bench warrant is issued so that he
can be present at the hearinq.
&-3
REspectfullv Submitted,
Pro Se " 0>
Date
Declaration
I Willie Henrv, tti, do declare under the penalty of periurv that I have personal knowledqe that everv statement contained herein are true and that all documents submitted are true and correct copies of the originals. All other documents such as relevant transcripts have been previouslv presented an-^i t
have no other copies available.
MKt ft \h\\
Pro Se
&-
3-n- \5
Date
Certificate of Service
I Willie Henrv TTI, can not certify that he has sent a copy to the
District Attorney's Office of Jefferson County , Texas, because he has no
possible way to make copies. T respectfully ask that the clerk provide a copy to the District Attorney's Office on mv behalf at the followina:
1001 Pearl St.
Beaumont, Texas 77701
Pro SE V\^
Date
^j*-
(^252ND ( )CRIMINAl ( )ORUQ 3 v RUG 4 <\V
DISTRICT COURT OF JEFFERSON COUNTY, TEXAS
No(s)_ WMj^r
Date :—9-it^.
() Designation of Attorney () Arraignment/Announcement Defendant
( ) Hearing of Pre-Trial Motions
(;) Plea or Disposition ^Jury trial/ Court trial )(LmuAy{ Attorney of Record- ()Apptd~i( jHired"
( ) Probation Revocation Hearing/Plea () Probation Revocation Announcement PrtfTrName
() Post Conviction Motions () Sentencing () Bond Proceedings () Habeas Corpus ( ) -
M
Proteoutor(1)(2)(3)
NOTICE OF nEiETTINO
THIS CASE IS RESET UNTIL S^"" J^2oOU® -.\^P ( ) not reached/continued from Trial Docket COURT NOTES;
Winftl&Med- fan ffWO
i^y
a
Court Official
„wl
>J0252NO ( JCRIMINAL ( )DRUQ 3 ( )DRUG 4 DISTRICT COURT OF JEFFERSON COUNTY, TEXAS
N0(S) Cfesi^ State vs.. LXM^iW
V
Date -.yisi^ () Designation of Attorney () Arraignment/Announcement ucnraflm
Hearing of Pre-Trial Motions *( ) Plea or Disposition () Jury trial/ Court trial
i ) Probation Revocation Hearing/Plea .1 lACyik*-
Aftomey of Record ()Apptd ( (Hired
() Probation Revocation Announcement Print Name
() Post Conviction Motions () Sentencing {) Bond Proceedings () Habeas Corpui ( )
Prosecutor (i) (2} (3)
fi
NOTICE Of. .•;r-* <*!..;*•• ! ukf
THIS CASE IS RESET UNTIL. ( ) not reached/continued from Trial Docket COURT NOTES;
^^^0^dMU2 -
14
, &-- Court OHWal
C^252ND ( )CRIM!NAL ( )DBUO 3 ( )DRUQ 4 b y>1
DISTRICT COURT OF JEFFERSON COUNTY, TEXAS
No(s)___ QftS^S ?AM va, \kXQJ)juL VWvA Date:
() Designation of Attorney () Arraignnienl/Announcement ( ) Hearing of Pre-Trial Motions ( ) Plea or Disposition J^Jury trial/ Court trial Attorney of Record ( ( [Hired k) Probation Revocation Hearing/Plea () Probation Revocation Announcement Print Name
() Post Conviction Motions () Sentencing () Bond Proceedings () Habeas Corpyt. < ) \K Pro*8etftof(l)(2)(3)
NOTICE Of REg&mm
THIS CASE IS RESET UNTIL. t 3TI iqcP AM<jfcT)~
( ) not reached/continued from ^35vcT7 Trial Docket COURTNOTES;
17
Court Olftolai
^
DOCKET-CRIMINAL DISTRICT COURT OUT 0!::' COUNTY BOND 20,000 BONDSMEN:
DATE OF FILING
ATTORNEYS- OFFENSE NUMBER PARTIES , Day
98575 THE STATE OF TEXAS SEXUAL ASSAULT REINDICTED FROM #86400 WILLIE HENRY-III BMI3 DATE OF ORDERS VOL. PAGE ORDERS OF COURT
Month Day Year &
C< 2. TS '_AtU£3CaSv^ r"^QrmjuL£- Ws<jd .waived jury and pleads (guilty)
m 01
gga^pss I further «oce?dmgs^ rntence report is ordered A pre-se
by Hie piubation
department by
lo Dl Court deferred all further procegdlnag inaeeardance with Article 42.12 C.C.P. Section 3d without enter ing an adjudication of guilt. Defendant is ptjced on Community Supervision for a term ofjfVffcS years. Court assessed a fine of S'z&D'0" ' _i£SL*5 ppA!»R!i-r>
"GflHWi rf.;^'
_«Uit V1* e^
THE STATE OF TEXAS^ .
10
CRIMINAL DOCKET
/iJA/^Lu| //Z vs. No..
VOL. PAGE
DATE OF ORDERS ORDERS OF COURT-(Continued) Moolh Par Vtw Court order entered regarding alleged pnunor, w 51 of3 lFtrinn Tl»P Disti.-i Artarney is <c immediately file a Motion to Revue iHofantion in this case, a ca pias been )8S*Abond in this case is set at.
A a \y& oi Mm llilM hrli^kmA
II 11 od as attorney. Copy of indictmerifTseitt to attorney with reset
Mflarlng bald on States
& YD* MTRP- Defendant *l«ad fnip to count. II — Court found count__| e*fi to be true —; UJftUtlhibSSil-SL >'
Defendant found guilty by the Court.The Court as StortftfteCourtCMmimtA ^ p^ .date-
I IL(& sessed the defendant's punishment at confinement in the Institutional Division of the Texas D ment of Criminal Justice for a term ot_/j yeais. OelenUmii duly sanleinjeii tu years confinement in the Institutional DivisionuAf fpo Tovac ncpartmpnl nf rrimiml liirtira L& D°\ ^CUM. L.2&M ^fopem A^rvA; ^ K^, T„ QfocvNQ—/Lv\i A,,
CD
DOCKET-CRIMINAL DISTRICT COURT BONDSMEN:
DATE OF FILING
ATTORNEYS OFFENSE Month Day Yea
THE STATE OF TEXAS
'tyl£yS o°\ r>l Of- fWftl WlM.O^-£«A»vl»rXrA AjlOKv' ftUto IjlMW VW^ itt. fcrnfe DATE OF ORDERS
ORDERS OF COURT VOL. PAGE Month Day Year a \7± o°i okA-W. ir-A h4-fnAj>5>an*\s>A rS- A-^'KjiA. A X.-TflTi i~Wd^ OTiui? £ n o<n OiLnc* . 5jlQz^, j./vv VO<du.cGa<. Fk^ao .A4A> • YWg~iA 0'T**J>. Ka^-^ .
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