ACCEPTED 01-14-01020-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 1:51:45 PM CHRISTOPHER PRINE CLERK
NO. 01-14-01020-CR IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 1:51:45 PM SIMMIE JAMES COLSON III CHRISTOPHER A. PRINE Clerk APPELLANT, V.
THE STATE OF TEXAS
APPELLEE.
MOTION TO REMAND THIS CASE TO THE TRIAL COURT TO CONDUCT AN EVIDENTIARY HEARING TO CREATE A RECORD TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
APPEAL FROM THE 185TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS
DIOGU KALU DIOGU II, LL.M. DIOGU LAW FIRM P. O. BOX 994 FULSHEAR, TEXAS 77441 Diogu.diogu.law.firm@gmail.com Phone (713) 791 3225 Fax (832) 408 7611
1 APPELLANT SIMMIE JAMES COLSON III MOTION TO REMAND THIS CASE TO THE TRIAL COURT TO CONDUCT AN EVIDENTIARY HEARING TO CREATE A RECORD TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
TO THE HONORABLE JUDGE OF THE SAID COURT:
COMES NOW. APPELLANT SIMMIE JAMES COLSON III, through undersigned
counsel, respectfully urges the Court to remand this appeal to the District Court to
enable the Appellant develop appellate record to raise material fact on issues relating to
ineffective assistance of Counsels through an evidentiary hearing and the show the
Court the following:
I INTRODUCTION
On or about June 08th, 2015, the Appellant employed the services of the
undersigned attorney and requested among that among other things that he amend the
appellant’s Brief to include issues relating to ineffective assistance of counsel.
In doing so he stated that the initial lawyer he hired Attorney Maverick Ray, told
him that he had spoken with the probation department, as well as the district attorney
and judge and they were going to throw this case out based on length time since
offense occurred as well as what he has been doing for the community, that after
turning himself in Attorney Ray’s story changed. And that when they appeared before
the court instead of the case being thrown out, the Appellant was offered six months jail
2 time by Judge Susan Brown who presided over the case in Court 185th District Court of
Harris County, Texas.
He also stated that thereafter he hired Attorney Overstreet, who he claimed
based on his presentation before Judge Brown angered the Judge so much that the
Judge raised the six Jail time she had previously offered him to seven months.
Clearly, the record on appeal is void of any material facts relating to and including
the allegation he made in this motion that formed and will form the basis to raise
ineffective Assistance of Counsel in direct Appeal.
To fill that void, the Appellant asks the Court to remand the case to the 185th
Judicial District court of Harris County solely to enable him develop the required record
in an evidentiary hearing.
II INEFFECTIVE ASSISTANCE OF COUNSEL
Although the constitutional right to counsel ensures the right to reasonably
effective counsel, it does not guarantee errorless counsel whose competency or
accuracy of representation is to be judged by hindsight. Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003). To prove ineffective assistance of counsel, Colson must
show that (1) her first counsel’s performance fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s error,
the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668,
687 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); Jaynes v. State,
3 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). A failure to make a
showing under either prong of the Strickland standard defeats a claim of ineffective
assistance of counsel. Rylander, 101 S.W.3d at 110-11.
Appellant must prove his claim of ineffective assistance of counsel by a
preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim.
App. 1991). Courts’ review of defense counsel’s representation is highly deferential, and
the Courts normally presume that Trial Counsel’s actions fell within the wide range of
reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002). Courts will not second-guess legitimate tactical decisions made by trial
counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008). Allegations of
ineffective assistance of counsel must be firmly founded in the record. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record must sufficiently
demonstrate that the acts or omissions of counsel were not the product of strategic
decisions; if the record is silent as to any explanation for counsel’s actions, a reviewing
court will find that the defendant has failed to overcome the strong presumption of
reasonable assistance “unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.” Morales, 253 S.W.3d at 696-97 (quoting
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); see Thompson, 9
S.W.3d at 814; Jaynes, 216 S.W.3d at 851.
4 These demanding standards are virtually impossible to meet when no proper
evidentiary record was developed at the hearing on a motion adjudicate guilt and
revoke his community supervision.” Chavero v. State, 36 S.W.3d 688, 701 (Tex. App.–
Corpus Christi 2001, no pet.). See also, Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911
(2013), and Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012),
The Martinez recognized a limited exception to procedural default. See Martinez,
132 S. Ct. at 1318-1319, 1320-1321. In Trevino, the United States Supreme Court held
that Martinez, applies in Texas because "the Texas procedural system—as a matter of its
structure, design, and operation—does not offer most defendants a meaningful
opportunity to present a claim of ineffective assistance of trial counsel on direct
appeal." 133 S. Ct. 1911, 1921.
All facts recited in this motion are within the personal knowledge of the counsel
signing this motion, therefore no verification is necessary under Rule of Appellate
Procedure 10.2.
CONCLUSION AND PRAYER
For the reasons set forth above, Appellant respectfully urges this Court to
remand the case to the trial Court and allow him to fully develop the factual claims that
supports his claim of ineffective assistance of Counsel which was not raised in his brief
because the lawyers who filed the brief may have had a conflict of interest and as such
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ACCEPTED 01-14-01020-CR FIRST COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 1:51:45 PM CHRISTOPHER PRINE CLERK
NO. 01-14-01020-CR IN THE FIRST COURT OF APPEALS HOUSTON, TEXAS FILED IN 1st COURT OF APPEALS HOUSTON, TEXAS 6/12/2015 1:51:45 PM SIMMIE JAMES COLSON III CHRISTOPHER A. PRINE Clerk APPELLANT, V.
THE STATE OF TEXAS
APPELLEE.
MOTION TO REMAND THIS CASE TO THE TRIAL COURT TO CONDUCT AN EVIDENTIARY HEARING TO CREATE A RECORD TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
APPEAL FROM THE 185TH JUDICIAL DISTRICT COURT OF HARRIS COUNTY, TEXAS
DIOGU KALU DIOGU II, LL.M. DIOGU LAW FIRM P. O. BOX 994 FULSHEAR, TEXAS 77441 Diogu.diogu.law.firm@gmail.com Phone (713) 791 3225 Fax (832) 408 7611
1 APPELLANT SIMMIE JAMES COLSON III MOTION TO REMAND THIS CASE TO THE TRIAL COURT TO CONDUCT AN EVIDENTIARY HEARING TO CREATE A RECORD TO RAISE THE ISSUE OF INEFFECTIVE ASSISTANCE OF COUNSEL ON DIRECT APPEAL
TO THE HONORABLE JUDGE OF THE SAID COURT:
COMES NOW. APPELLANT SIMMIE JAMES COLSON III, through undersigned
counsel, respectfully urges the Court to remand this appeal to the District Court to
enable the Appellant develop appellate record to raise material fact on issues relating to
ineffective assistance of Counsels through an evidentiary hearing and the show the
Court the following:
I INTRODUCTION
On or about June 08th, 2015, the Appellant employed the services of the
undersigned attorney and requested among that among other things that he amend the
appellant’s Brief to include issues relating to ineffective assistance of counsel.
In doing so he stated that the initial lawyer he hired Attorney Maverick Ray, told
him that he had spoken with the probation department, as well as the district attorney
and judge and they were going to throw this case out based on length time since
offense occurred as well as what he has been doing for the community, that after
turning himself in Attorney Ray’s story changed. And that when they appeared before
the court instead of the case being thrown out, the Appellant was offered six months jail
2 time by Judge Susan Brown who presided over the case in Court 185th District Court of
Harris County, Texas.
He also stated that thereafter he hired Attorney Overstreet, who he claimed
based on his presentation before Judge Brown angered the Judge so much that the
Judge raised the six Jail time she had previously offered him to seven months.
Clearly, the record on appeal is void of any material facts relating to and including
the allegation he made in this motion that formed and will form the basis to raise
ineffective Assistance of Counsel in direct Appeal.
To fill that void, the Appellant asks the Court to remand the case to the 185th
Judicial District court of Harris County solely to enable him develop the required record
in an evidentiary hearing.
II INEFFECTIVE ASSISTANCE OF COUNSEL
Although the constitutional right to counsel ensures the right to reasonably
effective counsel, it does not guarantee errorless counsel whose competency or
accuracy of representation is to be judged by hindsight. Rylander v. State, 101 S.W.3d
107, 110 (Tex. Crim. App. 2003). To prove ineffective assistance of counsel, Colson must
show that (1) her first counsel’s performance fell below an objective standard of
reasonableness; and (2) there is a reasonable probability that, but for counsel’s error,
the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668,
687 (1984); Andrews v. State, 159 S.W.3d 98, 102 (Tex. Crim. App. 2005); Jaynes v. State,
3 216 S.W.3d 839, 851 (Tex. App.–Corpus Christi 2006, no pet.). A failure to make a
showing under either prong of the Strickland standard defeats a claim of ineffective
assistance of counsel. Rylander, 101 S.W.3d at 110-11.
Appellant must prove his claim of ineffective assistance of counsel by a
preponderance of the evidence. Stafford v. State, 813 S.W.2d 503, 506 n.1 (Tex. Crim.
App. 1991). Courts’ review of defense counsel’s representation is highly deferential, and
the Courts normally presume that Trial Counsel’s actions fell within the wide range of
reasonable and professional assistance. Bone v. State, 77 S.W.3d 828, 833 (Tex. Crim.
App. 2002). Courts will not second-guess legitimate tactical decisions made by trial
counsel. State v. Morales, 253 S.W.3d 686, 696 (Tex. Crim. App. 2008). Allegations of
ineffective assistance of counsel must be firmly founded in the record. Thompson v.
State, 9 S.W.3d 808, 813 (Tex. Crim. App. 1999). The record must sufficiently
demonstrate that the acts or omissions of counsel were not the product of strategic
decisions; if the record is silent as to any explanation for counsel’s actions, a reviewing
court will find that the defendant has failed to overcome the strong presumption of
reasonable assistance “unless the challenged conduct was so outrageous that no
competent attorney would have engaged in it.” Morales, 253 S.W.3d at 696-97 (quoting
Goodspeed v. State, 187 S.W.3d 390, 392 (Tex. Crim. App. 2005)); see Thompson, 9
S.W.3d at 814; Jaynes, 216 S.W.3d at 851.
4 These demanding standards are virtually impossible to meet when no proper
evidentiary record was developed at the hearing on a motion adjudicate guilt and
revoke his community supervision.” Chavero v. State, 36 S.W.3d 688, 701 (Tex. App.–
Corpus Christi 2001, no pet.). See also, Trevino v. Thaler, ___ U.S. ___, 133 S. Ct. 1911
(2013), and Martinez v. Ryan, ___ U.S. ___, 132 S. Ct. 1309 (2012),
The Martinez recognized a limited exception to procedural default. See Martinez,
132 S. Ct. at 1318-1319, 1320-1321. In Trevino, the United States Supreme Court held
that Martinez, applies in Texas because "the Texas procedural system—as a matter of its
structure, design, and operation—does not offer most defendants a meaningful
opportunity to present a claim of ineffective assistance of trial counsel on direct
appeal." 133 S. Ct. 1911, 1921.
All facts recited in this motion are within the personal knowledge of the counsel
signing this motion, therefore no verification is necessary under Rule of Appellate
Procedure 10.2.
CONCLUSION AND PRAYER
For the reasons set forth above, Appellant respectfully urges this Court to
remand the case to the trial Court and allow him to fully develop the factual claims that
supports his claim of ineffective assistance of Counsel which was not raised in his brief
because the lawyers who filed the brief may have had a conflict of interest and as such
did not raise the issue on direct appeal.
5 As such the Appellant requests that an evidentiary hearing be scheduled to
resolve factual issues and develop a record to enable this court to properly review the
issues of ineffective assistance of his trial counsels on Appeal.
Respectfully submitted,
DIOGU LAW FIRM P. O. Box 994 Fulshear, Texas 77441 Tel: (713) 791 3225 Fax: (832) 408-7611
By:/S/ Diogu Kalu Diogu II, LL.M Diogu Kalu Diogu II, LL.M. State Bar No. 24000340 diogu.diogu.law.firm@gmail.com Attorney for Appellant
CERTIFICATE OF SERVICE
I certify that a true copy of the request for evidentiary hearing was served on the
Harris County District Attorney in accordance with the Texas Rules of Appellant
Procedure on June 12th 2015 by fax.
By:/S/ Diogu Kalu Diogu II, LL.M Diogu Kalu Diogu II, LL.M. State Bar No. 24000340 diogu.diogu.law.firm@gmail.com Attorney for Appellant