WR-83,529-02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/28/2015 4:59:03 PM Accepted 7/29/2015 8:18:56 AM ABEL ACOSTA No. WR-83,529-02 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS RECEIVED COURT OF CRIMINAL APPEALS 7/29/2015 ABEL ACOSTA, CLERK AMENDED APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM TWO FELONY CONVICTIONS
35th Judicial District Court of Mills County, Texas
Cause Numbers 2787 and 2788
The Honorable Judge Stephen Ellis, Presiding
Ex Parte Helene Marie Williams, Applicant
To the Honorable Court of Criminal Appeals:
This application is filed under Article 11.07 of the Code of Criminal Procedure, seeking relief from two felony convictions that occurred on the same day, August 14, 2013, in the same court. Trial counsel informed applicant that she would be eligible for good conduct time, and she is not, so her plea was involuntary.
Memorandum of Law in Support of 11.07 Applications
Respectfully submitted,
Landon Northcutt, 166 S. Belknap Stephenville, Texas 76401 Phone 254-968-2613, fax 254-968-5402 SBN 24014544 Attorney for Applicant-Helene Marie Williams
Application for Writ of Habeas Corpus for Helene Marie Williams Page 1 Identity of Parties and Counsel
Applicant Helene Marie Williams
Appointed Trial Counsel Larry Meadows
Appellate Counsel Landon Northcutt
Prosecutor Sam C. Moss
Table of Contents
Identity of Parties and Counsel 2
Index of Authorities 3
Statement of the Case 4
Issue Presented 4
Trial Counsel told the Applicant she was eligible for early release on parole when she is not, and her plea was therefore involuntary.
Statement of Facts 5
Summary of the Argument 6
Argument 7
Prayer for Relief 10
Certificate of Service 10
Application for Writ of Habeas Corpus for Helene Marie Williams Page 2 Index of Authorities
Statutes:
Texas Government Code
§ 508.145(d) 7
§ 508.145(e) 8
Treatises:
Performance Guidelines for Non-Capital Criminal Defense Representation
Texas Bar Journal, Volume 74, No. 7, pages 616 to 637 8
Application for Writ of Habeas Corpus for Helene Marie Williams Page 3 Statement of the Case
Applicant pled true on August 14, 2013 to portions of a motion to revoke
probation in Cause No. 2787, a two count indictment charging Indecency with a
Child. Pursuant to a plea agreement, the Trial Court sentenced her to eight years in
the Institutional Division-TDCJ.
On the same day, Applicant pled true to portions of a motion to revoke
probation in Cause No. 2788, a one count indictment charging Sexual Assault.
Pursuant to a plea agreement, the Trial Court sentenced her to eight years in the
Institutional Division-TDCJ.
Also that day, Applicant plead guilty to the offense of possession of a
Controlled Substance-Drug Free Zone, Cause No. 2931, pursuant to a plea
agreement, the Trial Court sentenced her to four years in the Institutional Division-
TDCJ.
Applicant is presently confined in the Murray Unit, 1916 North Highway 36
Bypass, Gatesville, Texas 76596 as inmate # 01878697. Her date of birth is
December 23, 1988, and she is not eligible for good conduct time.
Application for Writ of Habeas Corpus for Helene Marie Williams Page 4 Issue Presented
Applicant received ineffective assistance of counsel in the revocation
proceeding, in that her court appointed attorney did not property inform her of her
rights and options. Applicant is not parole eligible for her indecency with a child
conviction and her conviction for possession in a drug free zone, so she also
received ineffective assistance of counsel in that plea, so her plea is involuntary.
Statement of Facts
The motions to proceed with an adjudication of guilt, provided that the
Defendant violated various terms of her deferred adjudication probation. See
Appendix A and Appendix B Motions to Proceed with Adjudication of Guilt.
Before Applicant plead true to the motions to proceed, she received incorrect
advice from her court appointed attorney. See Appendix C Affidavit of Helene
Marie Williams. Her affidavit provides:
My court-appointed lawyer on my revocation was Larry Meadows. He came to
see me in county and after our introductions he told me I was looking at 5
years. A short time later my discovery packet was sent to me with my offer of
8 years. I called Mr. Meadows and told him that I would agree to shock
probation, or SAFP, or 2-3 years in prison but not 8 years. He said he would Application for Writ of Habeas Corpus for Helene Marie Williams Page 5 see what he could do. Next time we talked was on my court date August 14,
2013. He pulled me aside and said the DA stayed at 8 but offered me 4 for my
possession of controlled substance in a drug free zone. He told me I would
come up for parole in 18 months or so and he also promised that I would not
spend more than four years in prison. He said the DA would not come down
anymore so I signed.
My 8 years turned out to be a 3g offense so I have to do at least 4 years on it
to even qualify for parole. It is possible that I will spend anywhere from 5-8
years in prison.
Affidavit of Helene Marie Williams, Appendix D.
The conviction for possession in a drug free zone does not provide for early
parole. See Appendix E, Judgment of Conviction by Court for Possession of a
Controlled Substance-Drug Free Zone.
Summary of the Argument
Court appointed trial counsel did not inform Applicant that she had a right to a
hearing. He told her that the sentence offered in cause No. 2787 would not be a 3g
offense, when it is a 3g offense. He did not tell her that possession in a drug free
zone requires a five year minimum sentence or the actual time served before
eligibility for parole is available. This is ineffective assistance of counsel, and
Application for Writ of Habeas Corpus for Helene Marie Williams Page 6 Applicant’s convictions should be set aside and new punishment hearings should
be held.
Argument
“An inmate serving a sentence for an offense described by Section
3g(a)(1)(A), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), or (M), or (N), Article
42.12, Code of Criminal Procedure, an offense for which the judgment contains an
affirmative finding under Section 3g(a)(2) of that article, an offense under Section
20A.03, Penal Code, or an offense under Section 71.02 or 71.023, Penal Code, is
not eligible for release on parole until the inmate's actual calendar time served,
without consideration of good conduct time, equals one-half of the sentence or 30
calendar years, whichever is less, but in no event is the inmate eligible for release
on parole in less than two calendar years.” Tx. Govt. Code §508.145(d).
Indecency with a child is an offense for which good conduct time does not
enter into the calculations for parole eligibility. Trial counsel gave the Applicant
unacceptable legal advice, which in turn caused Applicant to accept an erroneous
plea agreement.
“An inmate serving a sentence for which the punishment is increased under
Section 481.134, Health and Safety Code, is not eligible for release on parole until
the inmate's actual calendar time served, without consideration of good conduct Application for Writ of Habeas Corpus for Helene Marie Williams Page 7 time, equals five years or the term to which the inmate was sentenced, whichever is
less.” Tx. Gov’t.
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WR-83,529-02 COURT OF CRIMINAL APPEALS AUSTIN, TEXAS Transmitted 7/28/2015 4:59:03 PM Accepted 7/29/2015 8:18:56 AM ABEL ACOSTA No. WR-83,529-02 CLERK
IN THE COURT OF CRIMINAL APPEALS OF TEXAS RECEIVED COURT OF CRIMINAL APPEALS 7/29/2015 ABEL ACOSTA, CLERK AMENDED APPLICATION FOR A WRIT OF HABEAS CORPUS
SEEKING RELIEF FROM TWO FELONY CONVICTIONS
35th Judicial District Court of Mills County, Texas
Cause Numbers 2787 and 2788
The Honorable Judge Stephen Ellis, Presiding
Ex Parte Helene Marie Williams, Applicant
To the Honorable Court of Criminal Appeals:
This application is filed under Article 11.07 of the Code of Criminal Procedure, seeking relief from two felony convictions that occurred on the same day, August 14, 2013, in the same court. Trial counsel informed applicant that she would be eligible for good conduct time, and she is not, so her plea was involuntary.
Memorandum of Law in Support of 11.07 Applications
Respectfully submitted,
Landon Northcutt, 166 S. Belknap Stephenville, Texas 76401 Phone 254-968-2613, fax 254-968-5402 SBN 24014544 Attorney for Applicant-Helene Marie Williams
Application for Writ of Habeas Corpus for Helene Marie Williams Page 1 Identity of Parties and Counsel
Applicant Helene Marie Williams
Appointed Trial Counsel Larry Meadows
Appellate Counsel Landon Northcutt
Prosecutor Sam C. Moss
Table of Contents
Identity of Parties and Counsel 2
Index of Authorities 3
Statement of the Case 4
Issue Presented 4
Trial Counsel told the Applicant she was eligible for early release on parole when she is not, and her plea was therefore involuntary.
Statement of Facts 5
Summary of the Argument 6
Argument 7
Prayer for Relief 10
Certificate of Service 10
Application for Writ of Habeas Corpus for Helene Marie Williams Page 2 Index of Authorities
Statutes:
Texas Government Code
§ 508.145(d) 7
§ 508.145(e) 8
Treatises:
Performance Guidelines for Non-Capital Criminal Defense Representation
Texas Bar Journal, Volume 74, No. 7, pages 616 to 637 8
Application for Writ of Habeas Corpus for Helene Marie Williams Page 3 Statement of the Case
Applicant pled true on August 14, 2013 to portions of a motion to revoke
probation in Cause No. 2787, a two count indictment charging Indecency with a
Child. Pursuant to a plea agreement, the Trial Court sentenced her to eight years in
the Institutional Division-TDCJ.
On the same day, Applicant pled true to portions of a motion to revoke
probation in Cause No. 2788, a one count indictment charging Sexual Assault.
Pursuant to a plea agreement, the Trial Court sentenced her to eight years in the
Institutional Division-TDCJ.
Also that day, Applicant plead guilty to the offense of possession of a
Controlled Substance-Drug Free Zone, Cause No. 2931, pursuant to a plea
agreement, the Trial Court sentenced her to four years in the Institutional Division-
TDCJ.
Applicant is presently confined in the Murray Unit, 1916 North Highway 36
Bypass, Gatesville, Texas 76596 as inmate # 01878697. Her date of birth is
December 23, 1988, and she is not eligible for good conduct time.
Application for Writ of Habeas Corpus for Helene Marie Williams Page 4 Issue Presented
Applicant received ineffective assistance of counsel in the revocation
proceeding, in that her court appointed attorney did not property inform her of her
rights and options. Applicant is not parole eligible for her indecency with a child
conviction and her conviction for possession in a drug free zone, so she also
received ineffective assistance of counsel in that plea, so her plea is involuntary.
Statement of Facts
The motions to proceed with an adjudication of guilt, provided that the
Defendant violated various terms of her deferred adjudication probation. See
Appendix A and Appendix B Motions to Proceed with Adjudication of Guilt.
Before Applicant plead true to the motions to proceed, she received incorrect
advice from her court appointed attorney. See Appendix C Affidavit of Helene
Marie Williams. Her affidavit provides:
My court-appointed lawyer on my revocation was Larry Meadows. He came to
see me in county and after our introductions he told me I was looking at 5
years. A short time later my discovery packet was sent to me with my offer of
8 years. I called Mr. Meadows and told him that I would agree to shock
probation, or SAFP, or 2-3 years in prison but not 8 years. He said he would Application for Writ of Habeas Corpus for Helene Marie Williams Page 5 see what he could do. Next time we talked was on my court date August 14,
2013. He pulled me aside and said the DA stayed at 8 but offered me 4 for my
possession of controlled substance in a drug free zone. He told me I would
come up for parole in 18 months or so and he also promised that I would not
spend more than four years in prison. He said the DA would not come down
anymore so I signed.
My 8 years turned out to be a 3g offense so I have to do at least 4 years on it
to even qualify for parole. It is possible that I will spend anywhere from 5-8
years in prison.
Affidavit of Helene Marie Williams, Appendix D.
The conviction for possession in a drug free zone does not provide for early
parole. See Appendix E, Judgment of Conviction by Court for Possession of a
Controlled Substance-Drug Free Zone.
Summary of the Argument
Court appointed trial counsel did not inform Applicant that she had a right to a
hearing. He told her that the sentence offered in cause No. 2787 would not be a 3g
offense, when it is a 3g offense. He did not tell her that possession in a drug free
zone requires a five year minimum sentence or the actual time served before
eligibility for parole is available. This is ineffective assistance of counsel, and
Application for Writ of Habeas Corpus for Helene Marie Williams Page 6 Applicant’s convictions should be set aside and new punishment hearings should
be held.
Argument
“An inmate serving a sentence for an offense described by Section
3g(a)(1)(A), (C), (D), (E), (F), (G), (H), (I), (J), (K), (L), or (M), or (N), Article
42.12, Code of Criminal Procedure, an offense for which the judgment contains an
affirmative finding under Section 3g(a)(2) of that article, an offense under Section
20A.03, Penal Code, or an offense under Section 71.02 or 71.023, Penal Code, is
not eligible for release on parole until the inmate's actual calendar time served,
without consideration of good conduct time, equals one-half of the sentence or 30
calendar years, whichever is less, but in no event is the inmate eligible for release
on parole in less than two calendar years.” Tx. Govt. Code §508.145(d).
Indecency with a child is an offense for which good conduct time does not
enter into the calculations for parole eligibility. Trial counsel gave the Applicant
unacceptable legal advice, which in turn caused Applicant to accept an erroneous
plea agreement.
“An inmate serving a sentence for which the punishment is increased under
Section 481.134, Health and Safety Code, is not eligible for release on parole until
the inmate's actual calendar time served, without consideration of good conduct Application for Writ of Habeas Corpus for Helene Marie Williams Page 7 time, equals five years or the term to which the inmate was sentenced, whichever is
less.” Tx. Gov’t. Code §508.145(e).
Possession in a drug free zone is an offense for which good conduct time
does not enter into the calculations for parole eligibility. Trial counsel gave more
unacceptable legal advice.
The State Bar of Texas developed and adopted Performance Guidelines for
Non-Capital Criminal Defense Representation in January of 2011. The Guidelines
were published in the Texas Bar Journal, Volume 74, No. 7, pages 616 to 637, in
the July 2011 issue. “The Guidelines are not disciplinary rules nor are they black
and-white standards for the judicial evaluation of ineffective assistance. They are,
instead, a set of tools to be used by criminal defense lawyers, judges, and county
officials to improve our criminal justice system.” Guidelines at p 617.
The Guidelines provide, in relation to a lawyers duty in plea negations, as
follows: (beginning at page 627):
Guideline 6.2 The Contents of the Negotiations
Application for Writ of Habeas Corpus for Helene Marie Williams Page 8 A. In conducting plea negotiations, counsel should attempt to become familiar with
any practices and policies of the particular jurisdiction, judge, and prosecution that
may impact the content and likely results of a negotiated plea agreement.
B. In order to develop an overall negotiation plan, counsel should be fully aware
of, and make the client fully aware of:
1. The minimum and maximum term of imprisonment and fine or restitution that
may be ordered, any mandatory punishment, and the possibility of forfeiture of
assets;
2. The potential for recidivist sentencing, including habitual offender statutes and
sentencing enhancements, and all other applicable sentencing statutes or case law;
the client must comply in order to avoid revocation or adjudication;
3. The effects of good-time or earned-time credits on the sentence of the client, the
period that must be served according to statute before the client becomes eligible
for parole, and the general range of sentences for similar offenses committed by
defendants with similar backgrounds; .
Application for Writ of Habeas Corpus for Helene Marie Williams Page 9 Counsel gave Applicant defective advice, and she accepted a plea based on
incorrect advice. The plea was therefore involuntary to possession in a drug-free
zone.
Prayer
Applicant requests that her conviction for indecency with a child and
possession in a drug-free zone be set aside, and that her cases be remanded to the
trial court for re-consideration of the motion to revoke her deferred adjudication
probation and for resentencing on the possession in a drug-free zone.
/s/ Landon Northcutt Landon Northcutt, 166 S. Belknap Stephenville, Texas 76401 Phone 254-968-2613, fax 254-968-5402 SBN 24014544
Application for Writ of Habeas Corpus for Helene Marie Williams Page 10 Certificate of Service
A copy of this document was delivered to:
Appellant: Helene Marie Williams, TDC # 01878697 Murray Unit, 1916 North Hwy 36 Bypass Gatesville, Texas 76596
State’s Attorney Sam C. Moss, District Attorney Brown County DA’s Office Courthouse Brownwood, Texas 76801
Dated: July 28, 2015 ____/s/ Landon Northcutt________ Landon Northcutt
Application for Writ of Habeas Corpus for Helene Marie Williams Page 11